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SUPREME COURT, 


COUNTY OF NEW YORK. 


WALTER FINDLAY, J. T. MONELL, Mrs. G. H. CLAYTON, 
MARGARET A. CAMPBELL, MARY SCOTT, Mrs. I. 
GARDINER, RACHAEL BROWN, ANNIE F. STANBURY, 
ANN WILSON, HANNAH HIGBIE, ROBERT F. McKEE 
and JAMES McKENZIE, Jr., suing on behalf of themselves 
and all other members of Wes apes gi ee Church of 
West Twenty-Third Street, ole Ct 





) Plaintiffs, 


against 


JOHN LLOYD LEE, JOHN H. DE LAMATER, JOHN D. 
CLUSS, BRADFORD L. GILBERT, JOHN E. HEARTT, 
JAMES B. LINDSAY, CARSON G. ARCHIBALD, JAMES C. 
GULICK, HOMER LEE and EDWARD H..SLOCUM and 
THE WESTMINSTER PRESBYTERIAN CHURCH OF 
WEST TWENTY-THIRD STREET, 





Defendants. 





Summons, Complaint, Notice of Motion for 
Injunction and Affidavits. 








RUSH TAGGART, 
ste Attorney for Plaintiffs, 
be Cae : 195 BROADWAY, 
ma | : New York City. 





NEW YORK: 
Cc. G. 3 cxieoubrlasl ee WALKER AND CENTRE STS. 
1906. 


















y-third Street, 
x2 Plaintiffs, 


AGAINST 


ee Tae E. Heart, 
B. Lrypsay, Carson G. 
Lp, James C. Guitox, 
and Epwarp H. 


ake 


re ee UTA TT 


A Siaeon 


oo D the 26th aes of March, 1906, thereto 





sisnt qulprarited and the affidavit of F.E. se 





2 


5 attached, the undersigned will move this Court, at a Spe- 
cial Term thereof, to be held at Chambers, Part I., in 
the County Court House, in the City of New York, on 
the 5th day of April, 1906, at 10.80 in the forenoon, 
or as soon thereafter as counsel can be heard, for an 
order enjoining the defendants, John Lloyd Lee, John 
H. De Lamater, John D. Cluss, Bradford L. Gilbert, 
John E. Heartt, James B. Lindsay, Carson G. Archi- 
bald, James C. Gulick, Homer Lee, and Edward H. 
Slocum, defendants, from using, occupying, or possess- 

6 ing the property of the Westminster Presbyterian 
Church of West Twenty-third Street, or any of the 
income or revenues thereof, and from removing or dis- 
posing of the books, papers and documents constituting 
the records of said Church, and from interfering with 
the occupancy, use, possession, or control of the same - 
by the plaintiffs, and other members of said Westmin- 
ster Presbyterian Church of West Twenty-third Street, 
who may associate with the plaintiffs under the direc- 
tion, advice and control of the Presbytery of New York 

7 pending the trial of this action; and for such other or 
further relief as may be just, with the costs of this 
motion. 

RusH TaGaart, 
Office and Post-Office Address, 
No. 195 Broadway, 
Borough of Manhattan, 
New York City. 


SUPREME COURT, 


Country oF New York. 


=a 





Water Finptay, J. T. MoneEL1, aa 
O. H. Crayton, MarGcarer al 
CAMPBELL, Mary Scott, Mrs. I. 
GARDNER, RacHEeL Brown, ANNIE 
F, Sranpury, ANN WILson, HANNAH 
Hiasizt, Roperr F. McKrr and 
JamMES McKenzir, JR, suing on 
behalf of themselves and all other 
members of Westminster Presby- 
terian Church of West ipa 
Third Street, : 


SS eee 


Plaintiffs, 
AGAINST 


{ 
JoHN Luoyp Lrz, Jonn H. DsLa-| 
MATER, JOHN D. Criuss, BRADForD L. 
GILBERT, JoHN E. Hearrr, JAMES | 
B. Linpsay, Carson G. ARCHIBALD, | 
James C. Gutick, Homer Lee and | 
Epwarp H. Stocum, and THE WEsT- | 
MINSTER PRESBYTERIAN CHURCH OF 
West Twenry-THIrD STREET, 
Defendants. 








TO THE ABOVE-NAMED DEFENDANTS : 


You are hereby summoned to answer the complaint 
in this action and to serve a copy of your answer on 
the plaintiffs’ attorney within twenty days after the 
service of this summons, inclusive of the day of service ; 


9 


10 


11 


12 


4 


13 and in case of your failure to appear or answer, judg- 
ment will be taken against you by default for the 
relief demanded in the complaint. 

Dated, New York, March 26, 1906. 
Rusu TacGart, 
Plaintiffs’ Attorney, 
Office and Post-office Address, 
No. 195 Broadway, 
Borough of Manhattan, 
New York City. 
14 


15 


16 


Or 


SUPREME COURT, 


County or New York. 





Water Finpuay, J. T. MOowneLL, 
Mrs. G. H. Crayton, MarGcarer 
A. CAMPBELL, Mary Scort, Mrs. 
I. GarpNer, RAcHEL Brown, ANNIE 
F. Stanpury, ANN WiLson, HANNAH 
Hicpie, RKoserr F. McKrsg, and | 
JAMES McKenziz, Jr., suing on 
behalf of themselves and all other 
members of Westminster Presby- 
terian Church of West Twenty- 
third Street, 

Plaintiffs, 


AGAINST 


JoHN Lioyp Ler, Joun H. Des 
LAMATER, JOHN D. Ciuss, Brap- 
FoRD L. GILBERT, JOHN E. HeEartr, 
JAMES 3B. Linpsay, Carson G. 
ARCHIBALD, JAMES OC. GULICK, 
Homer Ler, Epwarp H. Stocvum, 
and WESTMINSTER PRESBYTERIAN 
CuurcH of West Twenty-third 
Street, 

Defendants. 


a aN 


The plaintiffs, by Rush Taggart, their attorney, 
complain of the defendants and say : 


1. That they are informed and believe that 
the Westminster Presbyterian Church of West 
Twenty-third Street is a_ religious corporation 
of the State of New York, organized on or 
about the 19th day of April, 1889, under and 


1s 


19 


20 


21 


22 


24 


6 


in accordance with the provisions of Chapter 60 of 
the Revised Laws of the State of New York, 1813, 
entitled ‘an Act to provide for the incorporation of 
religious corporations,” acts amendatory of and sup- 
plementary thereto; that the said Westminster 
Presbyterian Church of West Twenty-third Street 
was formed by the Union of two pre-existing 
religious corporations, one known as the “ West- 
minster Presbyterian Church,” a corporation organized 
under the Act entitled, “ An Act for the incorporation 
of religious societies,’ passed April 5, 1813, and acts 
amendatory thereof and supplementary thereto ; and 
the other the ‘* West Twenty-third Street Presbyterian 
Church,’ a religious corporation duly incorporated 
under an act entitled “ An Act for the incorporation 
of religious societies ”, passed April 5, 1813, and acts 
amendatory thereof. Copies of the petitions of said 
churches respectively, of the agreement, proceedings 
relative to the said consolidation, and the order of the 
court confirming the same, in accordance with the pro- 
visions of said Religious Corporations Act, are hereto 
attached, made part hereof and marked “ Exhibit A”. 


2. The plaintiffs allege that on and prior to the 
31st day of January, 1906, and at all times sub- 
sequent thereto, they and each of them, were 
members of said Westminster Presbyterian Church 
of West Twenty-third Street in good standing; that 
the defendant, John Lloyd Lee, at said date and 
prior thereto was and had been pastor of the said 
church, and the defendants John H. DeLamater, John 
D. Cluss, Bradford L. Gilbert, John EK. Heartt, James 
B. Lindsay, Carson G. Archibald, James C. Gulick, 
Homer Lee, and Edward H. Slocum, were the elders 
constituting with the Pastor, if any, the session of 
said church, and under action taken in accordance 
with the provisions of Chapter 97 of the Laws of 
1902 of the State of New York, entitled ‘‘ An Act to 
amend the religious corporation law relating to Pres- 
byterian Churches,” the said church had taken action 
on or about the 5th day of April, 1905, whereby the 


7 


members of the session of the said church became 
also er-officio the board of trustees thereof. 


3. That said Westminster Presbyterian Church of | 


West Twenty-third Street, at all times subsequent to 
its formation in the year 1889, and the churches which 
were united to form the same as hereinbefore set forth, 
for many years prior to their consolidation, as aforesaid, 
had formed a constituent part of, and had been subor- 
dinate to and under the jurisdiction and control of 
the Presbytery of New York, and a constituent part of 
the Presbyterian Church in the United States of 
America; that the Form of Government of the said 
Presbyterian Church in the United States of America, 
provides among other things that every particular 
church 


“consists of a number of professing Christians, with 
their offspring, voluntarily associated together for 
divine worship and godly living, agreeably to the 
Holy Scriptures and submitting to a certain form of 
government ” 


that under the said form of government of the said 
church, each particular church is governed by a session 
composed of a pastor or pastors, and ruling elders. The 
ruling elders are chosen by the members of the church. 
Each church is a constituent part of and subordinate 
to and under the control of a presbytery, which consists 
of all the ministers, in number not less than five, and 
one ruling elder, from each congregation, within a cer- 
tain defined district. The Form of Government of said 
church defines the power of the Presbytery as follows : 


“The presbytery has power to receive and issue ap- 
peals, complaints and references from church sessions 
brought before them in an orderly manner; and in 
the trial of judicial cases, the presbytery shall have 
power to appoint and act by Judicial Commissions ; 
to examine and lecense candidates for the holy 
ministry ; to ordain, install, remove and judge minis- 
ters ; to examine and approve or censure the records 
of the church sessions ; to resolve questions of doc- 
trine or discipline seriously and reasonably proposed ; 
to condemn erroneous opinions which injure the purity 


25 


26 


27 


23 


29 


30 


31 


32 


8 


or peace of the Church; to visit particular churches, 
for the purpose of inquiring into their state, and re- 
dressing the evils that may have arisen in them; to 
unite or divide congregations, at the request of the 
people, or to form or receive new congregations, and in 
general to order whatever pertains to the spiritual 
welfare of the churches under their care.” 


that over said presbyteries in said church is the synod, 
composed of three or more presbyteries within its 
boundaries, and with representation determined from 
the ministers and elders of the congregations in said 
presbyteries upon a ratio determined by the synod 
itself, and its presbyteries. The power of the synod 
is defined in the Form of Government as follows : 


“The synod has power to receive and issue all appeals 
regularly brought up from the presbyteries, provided, 
that in the trial of judicial cases the synod shall have 
power to act by commission, in accordance with the 
provisions on the subject of judicial commissions in 
the Book of Discipline; to decide on all references 
made to them ; its decisions on appeals, complaints, 
and references, which do not affect the doctrine or con- 
stitution of the Church, being final ; to review the rec- 
ords of presbyteries, and approve or censure them ; to 
redress whatever has been done by the presbyteries 
contrary to order ; to take effectual care that presby- 
teries observe the constitution of the Church: to erect 
new presbyteries, and unite or divide those which were 
before erected ; generally to take such order with re- 
spect to the presbyteries, sessions, and people under 
their care, as may be in conformity with the Word of 
God and the established rules, and which tend to pro- 
mote the edification of the Church ; and, finally, to 
propose to the General Assembly, for their adoption, 
such measures as may be of common advantage to the 
whole church.” 


The synod is constituted with at least seven min- 
isters, and as many elders as may be present. Over 
the said synods is the general assembly, which re- 
presents in one body all the particular churches of 
the denomination, and is composed of an equal delega- 
tion of ministers and elders from each presbytery, upon 
a certain basis of representation fixed by said Form of 


9) 


Government. It is provided in said Form of Govern- 
ment that : 


‘The General Assembly shall receive and issue all 
appeals, complaints, and references that affect the doc- 
trine or constitution of the Church, which may be reg- 
ularly brought before them from the inferior judica- 
tories, provided, that in the trial of judicial caves the 
General Assembly shall have power to act by commis- 
sion, in accordance with the provisions on the subject 
of judicial commissions in the Book of Discipline. 
They shall review the records of every synod, and ap- 
prove or censure them ; they shall give their advice and 
instruction in all cases submitted to them in conformity 
with the constitution of the Church; and they shall 
constitute the bond of union, peace, correspondence, 
and mutual confidence among all our churches. 

To the General Assembly also belongs the power of 
deciding in all controversies respecting doctrine and 
discipline ; of reproving, warning or bearing testimony 
against error in doctrine, or immorality in practice, in 
any church, presbytery or synod; of erecting new 
synods when it may be judged necessary ; of superin- 
tending the concerns of the whole Church ; of corre- 
sponding with foreign churches, on such terms as may 
be agreed upon by the Assembly and the correspond- 
ing body ; of suppressing schismatical contentions and 
disputations; and, in general, of recommending 
and attempting reformation, of manners, and the pro- 
motion of charity, truth, and holiness, through all the 
churches under their care. 


Plaintiffs attach to their Bill of Complaint and 
make a part thereof a copy of the Form of Govern- 
ment, Book of Discipline, of the Presbyterian Church 
in the United States of America, and also Acts of the 
General Assembly relating thereto, marked B, and 
craves leave to read the same on the trial hereof the 
same as if each and all were set out in full herein. 

In accordance with the constitution of the said 
church, on information and belief that the said 
presbytery of New York was, on or about the 21st 
day of June, 1870, constituted, and included within 
its membership, all the ministers and churches of 
the Presbyterian church in the United States in Man- 
hattan Island, including therein the said Westminster 


33 


34 


35 


38 


39 


40 


10 


Pesbyterian Church and West Twenty-third Street 
Church, predecessors of the present Westminster 
Presbyterian Church of West Twenty-third Street, 
and within the boundaries of said Manhattan 
Island, there is no other presbytery belonging to 
the Presbyterian church in the United States of 
America, or in any way attached thereto, or con- 
nected therewith ; that the said presbytery of New 
York forms a part of the synod of New York, which 
said synod of New York has its boundaries coter- 
minous with the State of New York, and all of New 
Kngland, and embraces within its jurisdiction and 
control all the churches of the Presbyterian church 
in the United States of America within said State 
of New York and New England, and within the 
boundaries of Manhattan Island the only authority 
within said church to transfer the said individual 
churches, or any of them, to any other presbytery in 
the said Synod of New York, and said synod has taken 
no action respecting the transfer of said Westminster 
Presbyterian Church of West Twenty-third Street from 
the Presbytery of New York to any other Presbytery. 


4. On information and belief, that the said defend- 
ants, while respectively acting as pastor and members 
of the session and trustees of said Westminster Pres- 
byterian Church of West Twenty-third Street, caused 
a meeting of a portion of the congregation of said 
church to be heid on the 31st day of January, 1906, 
and at said meeting the following resolutions were sub- 
mitted and voted upon, to wit : 


“Whereas this church possesses its own individual 
right to decide its ecclesiastical relations, if any ; and 

Whereas we are convinced that the prosperity and 
usefulness of this church require that we sever all con- 
nection with, and withdraw from the presbytery of 
New York ; therefore be it 

Resolved that we do now sever our connection with, 
and withdraw from the presbytery of New York, and 
become independent of that body. 

Second. That we respectfully request our pastor, 
the Rey. John Lloyd Lee, D. D., to join with us in 
this act of severance, and withdrawal. 


di. 


Third. That the clerk of this meeting be directed to 
transmit a draft of these resolutions to the stated 
clerk of the New York presbytery.” 


That following said meeting and the adoption of said 
resolutions by a portion of the members of said West- 
minster Presbyterian Church of West Twenty-third 
Street, present and participating, the following com- 
munication was forwarded to the stated clerk of the 
presbytery of New York, to wit: 


‘‘ WESTMINSTER PRESBYTERIAN CHURCH, 
Rey. John Lloyd Lee, D. D., Pastor. 
214 West 23d Street, New York City, N. Y. 


Yes. 1st, 1906. 


Rey. F. E. SHearer, D. D., 
Stated Clerk of the Presbytery of New York. 


DEAR Sir :—I am directed by the Westminster Pres- 
byterian Church of West 23d Street, to transmit to 
you the following resolutions which were unanimously 
adopted Wednesday evening, January 31, 1906, at a 
meeting regularly called and largely attended in West- 
minster Church ; 

Whereas this church possesses its own individual 
right to decide its ecclesiastical relations, if any, and ; 

Whereas we are convinced that the prosperity and 
usefulness of this church require that we sever all con- 
nection with and withdraw from the presbytery of 
New York ; therefore, be it 

Resolved that we do now sever all connection with 
and withdraw from the presbytery of New York and 
become independent of that body. 

Second. That we respectfully request our pastor, 
Rev. John Lloyd Lee, D. D., to join with us in this act 
of severance and withdrawal. 

Third. That the clerk of this meeting be directed to 
transmit a copy of these resolutions to the stated clerk 
of the presbytery of New York. 

A true copy from the records. 

JoHN H. DELAMATER, 
Clerk of the meeting.” 


That concurrently with the transmittal of the said 
communication to the said stated clerk, the said de- 


41 


42 


43 


44 


12 


45 fendant, John Lloyd Lee, transmitted to the said stated 


46 


47 


48 


clerk of the presbytery of New York, the following 
communication : 


“ WESTMINSTER PRESBYTERIAN CHURCH, 
Rey. John Lloyd Lee, D. D., Pastor, 
214 West 23d Street, New York City. 


Frps. 1st, 1906. 


To THE PrespyTErRy OF New York, 
Rev. F. E. SHrarer, D. D., Stated Clerk. 


Kindly take notice that I have renounced the juris- 
diction of your church by becoming independent. I 
call your attention to your Book of Discipline, Section 
53, which says that in such a case “the Presbytery 
shall take no other action than to record the fact and 
erase his name from the roll. 

Very sincerely yours, 
JoHN Lioyp Ler.” 


That thereafter at a regular meeting duly convened 
of the Presbytery of New York, held on the 12th of 
February, 1906, the following proceedings relating to 
the said action of the Westminster Presbyterian 
Church of West Twenty-third Street were had by said 
presbytery : 


The Moderator’s Advisory Council reported a com- 
munication to the Presbytery from the Rev. John 
Lloyd Lee, D. D., and that it had considered the same 
and recommended the adoption of the preamble and 
resolution, to wit: 

Wuereas, the Rev. John Lloyd Lee, D. D., a min- 
ister in the Presbyterian Church in the United States 
of America, and a member of this Presbytery, and 
pastor of the Westminster Presbyterian Church of 
West Twenty-Third Street, in the City of New York, 
has sent to this Presbytery the following communica- 
tion: 


13 


WESTMINSTER PRESBYTERIAN CHURCH 
Rev. John Lloyd Lee, D. D., Pastor, 
214 West 23d Street, New York City. 


Frprvuary Ist, 1906. 


To THE PresByreRY OF NEw York, 
Rey. F. E. Shearer, D. D., Stated Clerk. 


Kindly take notice that I have renounced the juris- 
diction of your Church by becoming independent. 

T call your attention to your Book of Discipline, 
Section 538, which says that in such a case ‘‘ the Pres- 
bytery shall take no other action than to record the 
fact and erase his name from the roll”. 

Very sincerely yours, 
JOHN Lioyp LEE 


and has abandoned the ministry of and has renounced 
the jurisdiction of the Presbyterian Church in the 
United States of America, and become independent ; 

Resolved: That Presbytery makes the foregoing 
record of the fact and erases the name of the said John 
Lloyd Lee from the roll of the Presbytery of New York. 

On motion, the foregoing preamble and resolution 
were unanimously adopted. 


In the Presbytery of New York, Feb. 12, 1906: 


“The Moderator’s advisory counsel recommended the 
adoption of the following preamble and resolutions, to 
wit: 

Whereas the pastoral relation between John Lloyd 
Lee and the Westminister Presbyterian Church of 
West Twenty-Third Street has ceased to exist by 
reason of his abandoning the ministry of the Presby- 
terian Church in the United States of America and re- 
nouncing the jurisdiction of said charch and becoming 
independent and by his name being duly erased from 
the roll of this Presbytery upon the record of the fact 
by Presbytery, 

Resolved that the Presbytery makes record of the 
dissolution of the pastoral relation between John 
Lloyd Lee and the Westminister Presbyterian Church 
of West Twenty-Third Street by said act of withdrawal 
and that the same be and is hereby dissolved. 

Resolved that the Rev. George Alexander be and he 
is hereby appointed moderator of the session of the 


49 


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51 


53 


54 


55 


56 


14 


said Westminster Presbyterian Church of West 
Twenty-third Street. 

On motion the foregoing preamble and resolutions 
were unanimously adopted.” 


_ That said meeting of Presbytery also took the fol- 
lowing action : 


The Presbytery having been regularly convened and 
duly constituted and’ more than a quorum being 
present, inter alia. The Moderator’s advisory counsel 
reported acommunication to the Presbytery from the 
clerk of a meeting of the Westminster Presbyterian 
Church of West 25d Street received by the stated 
clerk of Presbytery and that it had considered the 
same and recommended the adoption of the following 
preamble and resolution, to wit: 

“ Wuereas Presbytery has been well advised of the 
unconstitutional proceedings of the Westminster 
Presbyterian Church of West 23d Street by the com- 
munication following, to wit: 


“ WESTMINSTER PRESBYTERIAN CHURCH, 
Rey. John Lloyd Lee, D. D., Pastor. 
214 West 23d Street, New York City. 


Frs. Ist, 1906. - 


Rey. F. E. SHearer, D. D., 
Stated Clerk of the Presbytery of New York. 


I am directed by the Westminster Presbyterian 
Church of West 23d Street to transmit to you the fol- 
lowing resolutions which were wnanimously adopted 
Wednesday evening, January 31, 1906, at a meeting 
regularly called and largely attended in the West- 
minster Church : 

Wuereas this church possesses its own individual 
right to decide its ecclesiastical relations, if any ; and 

WHEREAS we are convinced that the prosperity and 
usefulness of this church require that we sever all con- 
nection with and withdraw from the Presbytery of New 
York ; therefore, be it 

resolved that we do now sever all connection with 
and withdraw from the Presbytery of New York and 
become independent of that body. 

Srconp. That we respectfully request our pastor, 
Rey. John Lloyd Lee, D. D., to join with us in this act 
of severance and withdrawal. 


15 


Tatrp. That the clerk of this meeting be directed 
to transmit a copy of these resolutions to the stated 
clerk of the Presbytery of New York for the presbytery. 

A true copy from the records. 

JoHN H. DeLamarer 
Clerk of the meeting.” And 


Wuerreas John Lloyd Lee, late pastor of the 
Westminster Presbyterian Church of West Twenty- 
third Street has abandoned the ministry of the Pres- 
byterian Church in the United States of America 
and renounced the jurisdiction of said Presbyterian 
Church and become independent and the name 
of said Lee has been erased from the roll of 
this Presbytery upon the record of the fact by 
Presbytery and the pastoral relation between said Lee 
aud said Westminister Church of West 23d Street has 
been declared dissolved by the presbytery : 

Resolved that the communication of John H. DeLa- 
mater, clerk of the meeting of January 31, 1906, 
and the subject-matter thereof be referred to the 
Trustees of Presbytery for consideration and with 
power to them to take such action as_ they 
may be advised to safeguard and_ protect the 
property, real and personal, of the said West- 
minister Presbyterian Church of West 23d Street and 
to enforce the rights of the Presbytery and of the 
Presbyterian Church in the United States of America 
and the members of said bodies, whether in the name 
of said Trustees of said Presbytery or said Church or 
any of them or any member or members thereof.” 


The plaintiffs further allege on information and belief 
that, subsequent to the said meeting of the Presbytery, 
and on the 17th day of February, 1906, the said Rev. 
George Alexander, in accordance with his appointment 
as moderator of the said session of the Westminster 
Presbyterian Church of West Twenty-third Street, 
addressed a communication to the said session, and 
forwarded the same to John H. DeLamater, clerk of 
the said session, requesting said DeLamater to advise 
said Alexander when and where it would be agreeable 
for the said session to meet, in order that a meeting 
might be called and the affairs of the said church be 
rightfully considered by the said session, a copy of the 


57 


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59 


60 


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64 


16 


said communication of the said Alexander being as 
follows : 


“47 UNIVERSITY PLACE, 
N. Y. City, 
February 17th, 1906. 
Mr. Joun H. DeELAmateRr, 
Clerk of Session, 
63 West 71st Street, N. Y. 


My Dear Sir:—Referring to the action of the Presby- 
tery at its meeting on the 12th inst. appointing me 
moderator of the session of the Westminster Presby- 
terian Church of West Twenty-Third Street, I hereby 
advise you of the fact, and request you to write me, 
after consultation with the other elders composing the 
session, informing me when and where it will be agree- 
able to the session to have me as such moderator call 
a meeting of the session. 





Very truly yours, 
GEORGE ALEXANDER.” 


That in answer thereto the said Alexander received 
from the said session the following communication : 


“ NEW York, February 21st, 1906. 


Dear Sir :— Your courteous letter of February 17th 
instant, to the Clerk of this Session has been referred 
to it by him and after due consideration given to’ your 
said letter, I am instructed by the session to transmit 
to you the following : 

You are respectfully informed, first, that this church 
at a regularly called and largely attended meeting of 
the church on January 31st, 1906, voted unanimously 
to sever all connection with the Presbytery of New 
York, and that the said Presbytery has beeu notified 
of this fact. Second, that this session, both as mem- 
bers of the church and by suitable resolution, joined in 
that withdrawal. Third. This being the case, neither 
this church nor this session can, at any time or under 
any circumstances, receive or consider any communi- 
cation from you or from any one representing the 
Presbytery of New York, or from the Presbytery of 
New York itself, or consider for one moment from the 
Presbytery any proposition on the supposition that we 
are In any sense connected with or responsible to the 
Presbytery of New York, fur we are not; or on the 


17 


supposition that the said Presbytery has any jurisdic- 66 
tion whatsoever in the affairs of this church. 
Very truly yours, 
Joun H. DeLAmarter, 
Clerk, 
63 W. 71st St., 
INGA: 

Rey. GrorGE ALEXANDER, D. D., 

47 University Place, Manhattan, City.” 


That thereupon the said Rev. George Alexander, D. 
D., reported the action of the said session to the 
Presbytery of New York, at its meeting of March 12th, ¢¢ 
1906, in a communication as follows, to wit: 


‘©A47 University Puacs, N. Y. Crry 
March 9, 1906. 


To THE MODERATOR OF THE PRESBYTERY OF NEw YORK. 


Dear str :—As Moderator of the Westminster Pres- 
byterian Church of West 23rd Street, appointed by 
Presbytery at its meeting on the 12th day of February, 
1906, I have to report that on the 17th of February, 
1906, I sent to the Clerk of Session of said church, Mr. 
John H. DeLamater, the following communication : 67 


‘©47 University Pruaceg, N. Y. Crry 
February 17, 1906. 


Mr. Jonn H. DreLAmater, 
Olerk of Session, 63 West 71st Street, N. Y. 


My pear str :—Referring to the action of Presbytery 
at its meeting on the 12th inst. appointing me Moder- 
ator of the Session of the Westminster Presbyterian 
Church of West Twenty Third Street, [ hereby advise 
you of the fact, and request you to write me, after con- 63 
sultation with the other Elders composing the Session, 
informing me when and where it will be agreeable to 
the Session to have me as such Moderator call a meet- 
ing of the Session. 

Very truly yours, 
GEORGE ALEXANDER. 


No member of Session of said church communicated 
with me in person, but about the 21st of February I 
received from the Clerk of said Session the following 
communication : 


“69 


70 


71 


72 


18 
New York, February 21st, 1906. 


Deak sir :—Your courteous letter of February 17th 
instant, to the Clerk of this Session has been referred 
to it by him, and after due consideration given to your 
said letter, I am instructed by the Session to transmit 
to you the following: 


You Are RESPECTFULLY INFORMED: 


I—That this Church at a regularly called and largely 
attended meeting of the Church, on January 31st, 1906, 
voted unanimously to sever all connection with the 
Presbytery of New York, and that the said Presbytery 
has been notified of the fact. 

II—That this Session, both as members of the 
Church and by suitable resolution, joined in that with- 
drawal. 

Iii—This being the case, neither this Church nor 
this Session can, at any time or under any circum- 
stances, receive or consider any communication from 
you or from any one representing the Presbytery of 
New York, or from the Presbytery of New York itself, 
or consider for one moment from the Presbytery any 
proposition on the supposition that we are in any 
sense connected with, or responsible to the Presbytery 
of New York, for we are not; or on the supposition 
that the said Presbytery has any jurisdiction whatso- 
ever in the affairs of this Church. 

Very truly yours, 
Jno. H. DELAMATER, 
Clerk, 
63 W. 71st Str., N. Y. 

Rey. GEORGE ALEXANDER, D.D., 

47 University Place, 
Manhattan, City.” 


That thereupon the Presbytery adopted the follow- 
ing action : 
“ The Moderator’s advisory council reported a com- 


munication to Presbytery from Rev. Dr. George Alex- 
ander; Moderator of the Westminister Presbyterian 


* Church of West 23rd Street, appointed by Presbytery 


at its meeting of February 12, 1906, upon the occasion 
of the dissolution of the pastoral relation between the 
said Westminister Presbyterian Church of West 23rd 
Street and its then pastor, and that it had considered 


19 


the same and recommended the adoption of the follow- 
ing preamble and resolution, to wit : 

Wuereas: On the 12th day of February, 1906, the 
following proceedings were taken : 


In THE PRESBYTERY OF NEw YORK 2 
February’12, 1906. — = § 


The Presbytery having been regularly convened and 
duly constituted and more than a quorum being 
present inter alia, 

The Moderator’s Advisory Council reported a com- 
munication to the Presbytery from the Reverend John 
Lloyd Lee, D. D. and that it bad considered the same 
and recommended the adoption of the following pre- 
amble and resolution, to wit: 

Wuereas, the Reverend John Lloyd Lee, D.D., a 
minister in the Presbyterian Church in the United 
States of America, and a member of this Presbytery, 
and Pastor of the Westminister Presbyterian Church 
of West Twenty-third Street, in the City of New York, 
has sent to this Presbytery the following communi- 
cation : 


WESTMINSTER PRESBYTERIAN CHURCH 
Rev. John Loyd Lee, D. D., Pastor 
214 West 23rd Street, New York City 


Frepruary Ist 1906. 


To THE’ PRespyTERY oF NEw York, 
Rey. F. E. Shearer, D. D., Stated Clerk. 


Kindly take notice that I have renounced the juris- 
diction of your Church by becoming independent. 

I call your attention to your Book of Discipline, 
Section 53, which says that in such a case ‘“ the Pres- 
bytery shall take no other action than to record the 
fact and erase his name from the roll.” 

Very sincerely yours, 
JoHN Lioyp LEE. 


and has abandoned the ministry of and has renounced 
the jurisdiction of the Presbyterian Church in the 
United States of America, and become independent : 
ftesolved : That Presbytery makes the foregoing 
record of the fact and erases the name of said John 
Loyd Lee from the roll of the Presbytery of New York. 


13 


74 


76 


77 


79 


80 


20 


On motion, the foregoing preamble and resolution 
were unanimously adopted. 
A true extract from the Minutes. 
Attest, 
Freprric E. SHEARER, 
Stated Clerk. 


In rHE PresBpyTERY OF NEW YORK ? 
February 12, 1906. 


The Presbytery having been regularly convened and 
duly constituted and more than a quorum being pres- 
ent, ~nter alia, 

The Moderator’s Advisory Council recommended the 
adoption of the following preamble and resolutions, to 
wit : 

Wuerneas, the pastoral relation between John Lloyd 
Lee and the Westminster Presbyterian Church of West 
Twenty-third Street has ceased to exist by reason of 
his abandoning the ministry of the Presbyterian Church 
in the United States of America and renouncing the 
jurisdiction of said Church and becoming independent 
and by his name being duly erased fron the roll of this 
Presbytery upon the record of the fact by Presbytery, 

Resolved : That the Presbytery makes record of the 
dissolution of the pastoral relation between John Lloyd 
Lee and the Westminster Presbyterian Church of West 
Twenty-third Street by said act of withdrawal and that 
the same be and is hereby dissolved. 

Resolved: That the Rev. George Alexander be and 
heis hereby appointed Moderator of the Session of 
the said Westminster Presbyterian Church of West 
Twenty-third Street. 

On motion the foregoing preamble and resolutions 
were unanimously adopted. 

A true extract from the Minutes. 

Attest, 

FreEpDERIC E. SHEARER, 
Stated Cierk. 


In tHE PResspyrery oF New York, 
February 12, 1906. 


The Presbytery having been regularly convened and 
duly constituted and more than a quoram being pres- 
ent, inter alia, 

The Moderator’s Advisory Counsel reported a com- 
munication to the Presbytery from the Clerk of a meet- 


21 


ing of the Westminster Presbyterian Church of West 
Twenty third Street, received by the Stated Clerk of 
Presbytery, and that it had considered the same and 
recommended the adoption of the following preamble 
and resolution, to wit: 

Wuereas, Presbytery has been well advised of the 
unconstitutional proceedings of the Westminster Pres- 
byterian Church of West Twenty-third Street by the 
communication following, to wit : 


Westminster Presbyterian Church, } 
Rev. John Lloyd Lee, D.D., Pas- | 
tor, 214 West 23rd Street, r 
New York City. J 


February Ist, 1906. 


Rev. F. E. Sararer, D.D., 
Stated Clerk of the Presbytery of New York. 

I am directed by the Westminster Presbyterian 
Church of West Twenty-third Street, to transmit to 
you the following resolutions which were unanimously 
adopted, Wednesday evening, January 31st, 1906, at a 
meeting regularly called, and largely attended, in the 
Westminster Church : 

Wuereas, This Church possesses its own individual 
right to decide its ecclesiastical relation, if any, and 

Waereas, We are convinced that the prosperity and 
usefulness of this Church require that we sever all con- 
nection with, and withdraw from, the Presbytery of 
New York, therefore be it 

RESOLVED : 

1. That we do now sever all connection with, and 
withdraw from, the Presbytery of New York, and be- 
come independent of that body. 

2. That we respectfully request our Pastor, the Rev. 
John Lloyd Lee, D.D., to join with us in this act of 

severance and withdrawal. 

' 3. That the Clerk of this meeting be directed to 
transmit a copy of these Resolutions to the Stated 
Clerk of the Presbytery of New York, for the Presby- 
tery. 

A true copy from the records. 

JHo. H. DELAMATER, 
Clerk of the Meeting. 


AND Wuergas, John Lloyd Lee, late Pastor of said 
Westminster Presbyterian Church of West Twenty- 


81 


82 


83 


8t 


85 


86 


87 


£8. 


22 


third Street, bas abandoned the ministry of the Pres- 
byterian Church in the United States of America, and 
renounced the jurisdiction of said Presbyterian Church 
and become independent and the the name of said Lee 
has been erased from the roll of this Presbytery upon 
the record of the fact by Presbytery and the pastoral 
relation between said Lee and said Westminster Church 
of West Twenty-third Street has been declared dis- 
solved by Presbytery. 

Resotvep : That the communication of Jobn H. De- 
Lamater, Clerk of the meeting of January 31st, 1906, 
and the subject matter thereof be referred to the Trus- 
tees of Presbytery for consideration, and with 
power to them to take such action as they may be ad- 
vised to safeguard and protect the property, real and 
personal, of the said Westminster Presbyterian Church 
of West Twenty-third Street, and to enforce the rights 
of the Presbytery and of the Presbyterian Church in 
the United States of America, and the members of said 
bodies, whether in the name of said Trustees of said 
Presbytery, or said Church, or any of them or any 
member or members thereof. 

On motion the foregoing preamble and resolution 
were unanimously adopted. 

A true extract from the Minutes. 

Attest, FRepERIC E. SHEARER, 
Stated Clerk. 


WuerzrAs Presbytery is well advised of the following 
unconstitutional proceedings of the Session of the 
Westminster Presbyterian Church of West 23rd Street 
by the communication following, to wit : 


47 University Puace, N. Y. Crry 
March 9, 1906. 


To THE MODERATOR OF PRESBYTERY OF NEW YORK: 


Dear Str :—As Moderator of the Westminster Pres- 
byterian Church of West 23rd Street, appointed by 
Presbytery at its meeting on the 12th day of Febrn- 
ary, 1906, I have to report that on the 17th day of 
February, 1906, I sent to the Clerk of Sessions of said 
ehurch, Mr. John H. DeLamater, the following com- 
munication : 


23 


‘© 47 University Puace, N. Y. Crry 
February 17th, 1906. 


Mr. Joun H. DreLAmarer, 
Clerk of Session, 
63 West 71st Street, N. Y. 


My pEar Sm: Referring t. the action of Presbytery 
at its meeting on 12th inst. appointing me Moderator 
of the Session of the Westminster Presbyterian Church 
of West Twenty-third Street, I hereby advise you of 
the fact, and request you to write me, after consultation 
with the other Elders composing the Session, inform- 
ing me when and where it will be agreeable to the 
Session to have me as such Moderator call a meeting 
of the Session. 

Very truly yours, 
GEORGE ALEXANDER.” 


No member of Session of said church communicated 
with me in person, but about the 21st of February I 
received from the Clerk of said Session the following 
communication : 


“ New York, February 21st, 1906. 


Deak Sir :—Your courteous letter of February 17th 
instant, to the Clerk of this Session has been referred 
to it by him, and after due consideration given to your 
said letter, I am instructed by the Session to trans- 
mit to you the following : 


You ArE RESPECTFULLY INFORMED : 


I—That this Church at. a regularly called and largely 
attended meeting of the Church, on January 31st, 1906, 
voted unanimously to sever all connection with the 
Presbytery of New York, and that the said Presbytery 
has been notified of this fact. 

II—That this Session, both as members of the 
Church and by suitable resolution, joined in that with- 
drawal. 

Ii1—This being the case, neither this Church nor 
this Session can, at any time or under any circum- 
stances, receive or consider any communication from 
you or from any one representing the Presbytery of 
New York, orfrom the Presbytery of New York itself, 
or consider for one moment from the Presbytery any 
proposition on the supposition that we are in any sense 


89 


90 


91 


92 


93 


94 


96 


24 


connected with, or responsible to the Presbytery of 
New York, for we are not ; oron the supposition that. 
the said Presbytery has any jurisdiction whatsoever 
in the affairs of this Church. 
Very truly yours, 
Jno. H. DELAMATER, 
Clerk, 
63 W. 71st St., 
IN SY 


Rev. GrorGE ALEXANDER, D. D., 
47 University Place, Manhattan, City.” 


In THE PRESBYTERY OF New YORK. 
March 12th, 1906. 


The Presbytery having been regularly convened and 
duly constituted, and more than a quorum being present, 
inter alia, 

Resolved : That the following persons, to wit: John 
H. DeLamater, John D. Cluss, Bradford L. Gilbert, 
John E. Heartt, Homer Lee, James B. Lindsay, Carson 
G. Archibald, James C. Gulick, Edward H. Slocum, 
being all the Ruling Elders and the members of Ses- 
sion of the said Westminster Presbyterian Church of 
West 23rd Street, both as members of said church and 
by resolution of Session, have united with other mem- 
bers of said church in their attempt to sever all con- 
nection with, and to withdraw from, the Presbytery of 
New York, and become independent of that body in 
their so-called church meeting of January 31st, 1906, 
and have notified Presbytery of that fact, and in their 
request to their late pastor, John Lloyd Lee to join in 
such act of severance and withdrawal, and that the 
said members of Session renounce the jurisdiction of 
Presbytery and refuse to recognize the authority of 
Presbytery. 

vesolved : That in the interests of the spiritual wel- 
fare of the said Westminster Presbyterian Church of 
West 23rd Street and of Presbytery, and of the Pres- 
byterian Church in the United States of America, John 
H. DeLamater, John D. Cluss, Bradford UL. Gilbert, 
John K. Heartt, Homer Lee, James B. Lindsay, Carson 
G. Archibald, James C. Gulick, Edward H. Slocum, 
be, and they hereby are and each of them is deposed 
and removed from their offices, respectively, as such 
Ruling Elders in the Presbyterian Chureh and for- 
bidden to exercise any of the duties of said office in 
the said Westminster Presbyterian Church of West 
Twenty-third Street. 


25 


fesolved : That in view of the fact that they have 
renounced the jurisdiction of the Presbyterian Church 
in the United States of America, and removed them- 
selves from its membership, as understood by the Pres- 
bytery, the Presbytery has no alternative but to recog- 
nize the fact and erase their names from the roll of the 
membership of said Church. 

LPesolved : That 
Rey. William R. Richards, D,D. Theron G. Strong 
Rey. George Nixon William E. Magie 
be appointed a committee with the Moderator, ap- 
pointed by Presbytery, to call a meeting of the mem- 
bers of said church who remain and are loyal to the 
Presbyterian Churgh in the United States of America, 
and to this Presbytery, for the election of Ruling 
Elders, if suitable persons can be found to accept 
such office for the purpose of exercising their office in 
said church. 


In THE PRESBYTERY OF NEw York. 
March 12th, 1906. 


The Presbytery having been regularly convened and 
duly constituted, and more than a quorum being pres- 
ent, enter alia. 

RESOLVED, In view of the Rev. Dr. George Alexan- 
der’s intended absence from the country, his resigna- 
tion as Moderator of Session of the Westminster 
Presbyterian Church of West 23rd Street be accepted 
and that in his place Rev. Robert Mackenzie, D. D., be, 
and hereby is, appointed by Presbytery Moderator of 
the said Westminster Presbyterian Church of West 
23rd Street.” 


Plaintiffs aver on information and belief that 
under the Form of Government and Book of Dis- 
cipline of the Presbyterian Church, the said John 
Lloyd Lee, by renouncing the jurisdiction of the 
church and becoming independent, ceased to be a 
member of The Presbyterian Church in the United 
States of America and zpso facto ceased to be pastor of 
the said Westminster Presbyterian Church of West 
Twenty-third Street as’ declared and determined 
by said Presbytery of New York ; and that there- 
upon it was a legitimate exercise of the power of 
the Presbytery to appoint a moderator for the said 


97 


98 


99 


100 


101 


102 


103 


104 


26 


session from one of the members of the said Presby- 
tery. Plaintiffs further allege that under Section 2 of 
Article 46 of Chapter 97 of the Laws of New York of 
1902, if any trustee of an incorporated church to which 
this article is applicable having been a member of such 
church, ceases to be such member, his office as 
trustee shall be vacant. And plaintiffs allege on 
information and belief that the action of said mem- 
bers of said session, in repudiating the jurisdiction 
of the Presbytery of New York, followed by the 
action of the Presbytery of New York in removing 
them from their office as elders. and terminating 
their membership in The Presbyterian Church of the 
United States of America, vacated their office as trus- 
tees, and that by such vacation of their offices they 
ceased to have any right, power or authority to 
act for, or on behalf of the said Westminster Presby- 
terian Church of West Twenty-third Street as trustees 
thereof, and that there are now no trustees of said 
Westminster Presbyterian Church of West Twenty- 
third Street qualified to act for and on behalf of said 
church until the members of said church, adhering to 
it, and to the Presbyterian Church in the United 
States of America under the advice and direction of 
the Committee of the Presbytery of New York, shall 
have chosen members of the session of said church, 
and they shall have been inducted into office. 

Plaintiffs allege further on information and _ be- 
lief, that after the said John Lloyd Lee ceased 
to be the pastor of the said church, he ceased to 
have any right, power or authority to occupy any 
portion of the property of the said Westminster 
Presbyterian Church, or to occupy the pulpit of the 
said church as a minister thereof, or to receive 
any portion of the revenues of said church, and that 
the said defendants had no right to appropriate any 
portion of the revenues of said church to the payment 
of said John Lloyd Lee for any services on account of 
any alleged pastoral relation of said Lee to said 
church. 

These plaintiffs and each of them say that they 


27 


have not consented to, participated in, or waived their 
right to object to all the foregoing illegal, and unconsti- 
tutional proceedings as hereinbefore set forth, but that 
they have at all times remained members of the said 
Westminster Presbyterian Church of West Twenty- 
third Street, and loyal to the Presbytery of New York 
and to The Presbyterian Church in the United States 
of America. 

Plaintiffs say that the said Westminster Presbyte- 
rian Church of West Twenty-third Street is the owner 
of a certain lot or parcel of land, situate, lying and 
being in the city of New York bounded and described 
as follows : 


Beginning at a point on the southerly side of West 
Twenty-Third Street, distant one hundred feet westerly 
from the southwesterly corner of Seventh Avenue and 
said West Twenty-Third Street, running thence south- 
wardly and parallel with Seventh Avenue one 
hundred and eighteen feet and nine inches ; thence 
westwardly, parallel with West Twenty-Third Street, 
one hundred feet ; thence northwardly again, parallel 
with Seventh Avenue one hundred and eighteen feet 
and nine inches to the southerly side of West Twenty- 
Third Street ; and thence eastwardly along said south- 
erly side of West Twenty-Third Street one hundred 
feet to the point or place of beginning. 


That located thereon is a church building devoted to 
the purposes of public worship, and a manse for the 
occupation of the pastor of said church, and located in 
the said buildings is personal property used in con- 
nection with the said church, and the worship and 
church services conducted therein. 

(5) Plaintiffs allege that the defendants illegally and 
without right retain control and possession of the said 
property belonging to the Westminster Pres- 
byterian Church of West ‘Twenty-third Street, 
and refuse to give the plaintiffs possession of 
the same, and said defendants illegally and without 
right claim the right to thus control the use and pos- 
session of the same, and to use the revenues of the 
same for the maintenance of a church and church serv- 


105 


106 


107 


108 


109 


110 


411 


112 


28 


ices, wholly independent of the Presbytery of New 
York, and wholly free from its supervision and control. 

Wuererore plaintiffs pray that the court order, 
adjudge and decree that the said John Lloyd Lee is 
not the pastor of said church, or entitled to officiate in 
the pulpit therein as such pastor and is not entitled as 
such pastor longer to occupy any part of the property 
belonging to said Westminster Presbyterian Church 
of West Twenty-third Street, and that the said John H. 
DeLamater, John D. Cluss, Bradford L. Gilbert, John 
K. Heartt, Homer Lee, James B. Lindsay, Carson G. 
Archibald, James C. Gulick, and Edward H. Slocum, 
have ceased to be members or trustees of said West- 
minster Presbyterian Church of West Twenty-third 
Street and of “ The Presbyterian Church in the United 
States of America,” and that they have no right, power, 
or authority to control the said property or any of the 
same or to occupy or use the same or any revenues 
arising from the same or any part thereof for any pur- 
pose whatever, but that the plaintiffs and those associ- 
ating with them and retaining their membership in 
the said Westminster Presbyterian Church of West 
Twenty-third Street and who remain connected 
with the Presbytery of New York and _ with 
“The Presbyterian Church in the United States 
of America” are entitled to the control, pos- 
session, occupancy, and use of the said church 
property and every part thereof, and of the books, 
papers and documents constituting the records 
of said church, for the purposes of carrying 
on the work of the said Westminster Presby- 
terlan Church of West Twenty-third Street under 
the direction, advice, and control of the Presby- 
tery of New York, and that pending the trial of 
this action, the said defendants, John Lloyd Lee, 
John H. DeLamater, John D. Cluss, Bradford L. 
Gilbert, John E. Heartt, Homer Lee, James B. Lind- 
say, Carson G. Archibald, James C. Gulick and 
Edward H. Slocum, and each of them, may be enjoined 
from using, occupying or possessing, the said 
church property or any part thereof, or any 


29 


of the income and_ revenues thereof, and from 
interfering with the occupancy, use, possession, 
or control of the same by said plaintiffs and other 
members of said Westminster Presbyterian Church 
of West Twenty-third Street associating with the plaint- 
iffs under the direction, advice and control of the 
Presbytery of New York, and that the said defendants 
and each of them may be required to account for all 
moneys or property belonging to said Westminster 
Presbyterian Church of West Twenty-third Street 
which they or either of them have diverted since the 
said meeting of January 31, 1906, to any use or pur- 
pose not connected with the Westminster Presbyterian 
Church of West Twenty-third Street, and for such 
other and further relief as equity may require and the 
facts sustain. 
RusH TaGGcart, 
Attorney for the Plaintiffs. 
Office 195 Broadway, 
New York City. 


Stare oF New York, ) 
County of New York. § 


WaLter Finpuay, being duly sworn, says he is one 
of the plaintiffs in the above-entitled action; that he 
has read the foregoing complaint and knows the con- 
tents thereof and -that the same is true to his own 
knowledge except as to the matters therein stated to 
be alleged upon information and belief and that as to 
those matters he believes it to be true. Affiant further 
says that the sources of his information as to the 
membership of the other plaintiffs in the said church 
as stated in said complaint and the grounds of his 
belief are participation in meetings of said corpora- 
tion, and knowledge of the presence thereat and par- 
ticipation therein of the other plaintiffs above named, 


113 


114 


115 


116 


117 


118 


119 


120 


30 


as reputed members of said church and their recogni- 
tion as such members by the officers, and representa- 
tives of said church; that the sources of affiant’s in- 
formation and the grounds of his belief as to the 
consolidation of the said Westminster Presbyterian 
Church of West Twenty-Third Street is the copy of 
the proceedings relating thereto attached to the fore- 
going bill of complaint; and that affant’s knowledge 
of the transactions of the said Westminster Presby- 
terian Church of West Twenty-Third Street, at the 
congregational meeting of January 31, 1906, its com- 
munications to presbytery, and the action of presbytery 
in connection therewith, is derived from the official 
record of said proceedings, respectively, copies of 
which are set out in full in the foregoing complaint, 
and that he believes in the accuracy of the informa- 
tion imparted to him in the manner and by the docu- 
ments above described. 
WaALrer FInpLay. 


Sworn to before me this 27 
day of March, 1906. 


B. W. J. Fox, 
[SEAL, | Notary Public, 
Kings Co., 
Ney 
Certificate filed in New York County. 


dl 


Exhibit A. 


Ata Special Term of the Supreme Court, 
held in and for the City and County 
of New York at the County Court 
House in said City, on the 19 day 
of April, 1889. 


Present—HonorasLe GrorGE L. INGRAHAM, Justice. 





In THE MATTER 


OF 


| 

The Application of THE West | 
TWENTY-THIRD STREET PRESBYTERIAN 
Cuurca, of the City of New York, 
and the WESTMINSTER PRESBYTERIAN 
Cuurcu, of the City of New York, 
for an order authorizing said cor- 
porations to unite and consolidate | 
under the name of the WESTMINSTER | 
PRESBYTERIAN CHURCH OF WEST | 

TWENTY-THIRD STREET. 





The West Twenty-third Street Presbyterian Church 
and the Westminster Presbyterian Church having 
presented their separate petitions, verified the 16th 
day of April, 1889, to this Court, praying that an 
order may be granted for the union and consolidation 
of said churches and setting forth that each of said 
petitioners is a religious corporation, incorporated 
under the provisions of the 3rd section of chapter 60 
of the Laws of 1813, entitled “ An Act to provide for 
the incorporation of religious societies,’ and the 
several acts amendatory thereof or supplemental 
thereto, and also setting forth the reasons for such 
union and consolidation, the agreement hereinafter 
described, all the property real and personal, and all 
the debts and liabilities, and the amount and sources 
of the annual income of each of said corporations 


121 


122 


231 


124 


125 


126 


127 


128 


32 


respectively ; and that said corporations have entered 
into an agreement under their respective corporate 
seals for the nnion and consolidation of said cor- 
porations, setting forth the terms and conditions | 
thereof, the name of the proposed new corporation, 
the names of the persons who shall be its ministers, 
elders, deacons and trustees until the first annual 
election of the proposed new corporation, and fixing 
the day of its annual election; and it further appearing 
from said petitions that a meeting of each of the said 
corporations, to consider and act upon the proposed 
union and consolidation and the agreement and 
petition therefor, was called by a notice given in the 
same manner and for the same length of time as is 
provided for notices of the election of trustees in the 
3rd section of the act above mentioned, and that the 
proposed union and consolidation and the agreement 
and petition therefor, received the approval of three- 
fourths of the persons entitled to vote at an election 
of trustees at each of the corporations assembled at 
such meeting respectively. 

Now, upon said petitions and upon said agreement 
and the proceedings of the meetings held as above, 
set forth in said verified petitions and upon reading 
and filing said petitions and on motion of Theron G. 
Strong, of counsel for petitioners, 

Iv IS ORDERED that the prayers of said petitioners 
be and the same hereby are granted and that the West 
Twenty-third Street Presbyterian Church and the 
Westminster Presbyterian Church, be, and they hereby 
are united and consolidated: under the name of The 
Westminster Presbyterian Church of West Twenty- 
third Street, and that the terms, conditions and 
provisions of said union and consolidation be, and 
they hereby are, set forth in the agreement dated 
April 3rd, 1889, between the West Twenty-third 
Street Presbyterian Church and the Westminster 
Presbyterian Church a copy whereof is set forth in 
each of the said petitions upon which this order 
is made. 

Enter. 
Go liae 


33 


SUPREME COURT, 


Ciry AND County or New York. 





In THE MATTER 


ee Re ee ee 


OF 





The Application of ‘CHE West 
TWENTY-THIRD STREET PRESBYTER- 
IAN CHURCH OF THE City oF NEW 
York and Tur WESTMINSTER PREs- 
BYTERIAN CHURCH OF ‘THE CITY OF | 
New York for an order authoriz- 
ing said corporations to unite and 
consolidate under the name of The 
Westminster Presbyterian Church 
of West Twenty-third Street. 











The petition of the West Twenty-third Street Pres- 
byterian Church respectfully shows : 


I. That your petitioner is a religious corporation 
duly incorporated under the Act entitled ‘“ An Act for 
the Incorporation of Religious Societies,” passed April 
5, 1813, and the acts amendatory thereof. 


If. That your petitioner is desirous of uniting and 
consolidating with the Westminster Presbyterian 
Church of the City of New York and an arrangement 
has been made with said Westminster Presbyterian 
Church for a union and consolidation with your peti- 
tioner subject to the consent of this Honorable Court. 


III. That the reasons for such union and consolida- 
tion are as follows : 

Your petitioner owus and occupies a large and con- 
venient church edifice near the corner of Twenty-third 


129 


130 


131 


132 


133 


134 


135 


136 


od 


Street and Seventh Avenue and numbered 208, 210, 
212 and 214 West Twenty-third Street, and owns and 
possesses a parsonage for the use of its pastor ; that 
the expenses for caring for said property and conduct- 
ing public worship in said church and the usual weekly 
meetings are very large, while its congregation, by 
reason of changes taking place in its immediate vicin- 
ity and the tendency of residents of that portion of the 
City to move up town, have resulted in diminishing 
the number of its stated worshipers, thus reducing 
its income to a considerable extent ; that only about 
sixty nine out of one hundred and filty-nine of its pews 
are now rented, either in whole or in part, and it is nec- 
essary to devise some plan by whith the pews may be 
rented in order to produce an annual income sufficient 
to meet its running expenses ; that the Westminster 
Presbyterian Church is situated on West Twenty sec- 
ond. Street between Sixth and Seventh Avenues and is 
not more than seven hundred feet distant from the prop- 
erty of your petitioner ; that your petitioner refers to. the 
petition of the said Westminster Presbyterian Church 
which, as your petitioner is informed and believes is 
to be presented simultaneously with this petition for a 
statement of the circumstances and condition of the 
said Westminster Presbyterian Church and its reasons 
for desiring such union and consolidation as a true 
statement of such circumstances and conditions and 
reasons for such union and consolidation and refers to 
said petition as a part hereof ; that your petitioner is 
able under ordinary circumstances to accommodate in 
its church edifice the congregation of the West- 
minster Presbyterian Church and _ to ~ furnish 
sittings for the same and _ believes’ that 
with such increased congregation a __ sufficient 
income will be derived to meet all the necessary ex- 
penses of caring for and maintaining worship in your 
petitioner’s church; that in aldition thereto, the said 
Westminister Presbyterian Church intends with the 
permission of this Honorable Court, to sell its present 
church edifice and the lot, piece or parcel of ground on 
which the same is erected and turn over the proceeds 


25 


thereof to the religious corporation to be formed by 
the union of your petitioner with said Westminister 
Presbyterian Church to be the property of such cor- 
poration and thereby the revenues and pecuniary re- 
sources and consequent usefulness of your petitioner 
will be largely increased; that as your petitioner be- 
lieves, the religious needs of the locality in which your 
petitioner’s church, as well as said Westminister Pres- 
byterian Church is located, can be fully supplied by a 
single church which will be as efficient and useful as 
both your petitioner’s church and said Westminister 
Presbyterian Church are at present. 


IV. That the agreement made pursuant to the 
Second Section of Chap. 209 of the laws of 1875, is as 
follows : 

Tuts AGREEMENT made and entered into between The 
West Twenty-third Street Presbyterian Church of the 
City of New York of the first part, and the Westmin- 
ster Presbyterian Church, of the City of New York, of 
the second part, Witnesseth : 

Whereas each of the parties above named is a cor- 
poration duly incorporated under the laws of the State 
of New York, and 

Whereas the said corporations are desirous of unit- 
ing and consolidating under the name of the Westmin- 
ster Presbyterian Church of West Twenty-third Street, 
and 

Whereas the terms and conditions of this agreement 
are as hereinafter set forth, 

Now, therefore, in consideration of the premises and 
of the sum of One Dollar, the said coporations mutually 
agree to the following terms and conditions, to wit : 

I. Each of the parties hereto agrees to unite and 
consolidate with the other; such union and consolida- 
tion to be a corporation whose name shall be The 
Westminster Presbyterian Church of West Twenty- 
third Street. 

If. The Pastor of the West Twenty-third Street 
Presbyterian, to wit: Rev. R. F. Sample, D. D., and 
the Pastor of the Westminster Presbyterian Church, to 
wit: Rev. E. M. Deems, shall each of them be as Pastor 


137 


138 


139 


140 


141 


142 


143 


144 


36 


of the said Westminster Presbyterian Church of West 
Twenty-third Street until one year from the date of the 
entry of an order of the Supreme Court for the union 
and consolidation of the parties hereto under the name 
aforesaid, subject, however, to a continuance of them 
or either of them in said pastoral relation, such con- 
tinuance to be determined by a vote of the congregation 
in the same manner as in the éase of a call to a pastor. 
They shall be co-equal in authority as such pastors and 
shall mutually agree for a division and discharge of their 
duties as such pastors. The Rev. R. F. Sample, D. D., 
shall occupy the parsonage now belonging to said West 
Twenty-third Street Presbyterian Church, and shall 
receive a salary of Four Thousand Dollars. The Rev. 
E. M. Deems shall receive a salary of Three Thousand 
Dollars. Neither Pastor shall be required to remain 
the eutire year. 

Iif. The parties hereto, from and after the date of 
the entry of an order of the Supreme Court for the 
union and consolidation of the corporations aforesaid, 
shall occupy the Church edifice and its appurtenances 
now occupied by the West Twenty-third Street Presby- 
terian Church, as a place of public worship and for all 
ordinary Church purposes and from and after such 
union and consolidation, the parties hereto shall each 
have the same rights therein as now belong to the West 
Twenty-third Street Presbyterian Church. . 

IV. The church edifice and property now occupied 
by the Westminster Presbyterian Church shall be sold 
as soon as practicable after the entry of an order for 
such union and consolidation, as aforesaid, consistent 
with obtaining a just and fair price for the same, and 
all questions connected with the sale of said property 
shall be determined by a vote of the Trustees of the 
corporation to be formed by the union and _ consolida- 
tion of the parties hereto. The proceeds of such sale 
shall be the property of the corporation formed by such 
union and consolidation and such disposition shall be 
made of the same as the Trustees of said corporation 
may determine ; they shall also decide as to when and 
how and for what price said property shall be sold. 

V. Wuereas, there are three mortgages upon the 


oT 


property of the Westminster Presbyterian Church now 145 


held by the Trustees of the Presbytery of New York 
amounting in all to the sum of Twenty-two thousand 
six hundred ($22,600.) Dollars, Ir Is AGREED that the 
corporation to be formed by the union and consolida- 
tion aforesaid shall execute and deliver to the Trustees 
of the Presbytery of New York a mortgage without 
bond upon the property now held by the West Twenty- 
third Street Presbyterian Church, upon the following 
terms and conditions, to wit : that said corporation to 
be formed as aforesaid shall well and truly pay unto 
the Trustees of the Presbytery of New York, their 
successors or assigns, the just and full sum of Twenty- 
_ two thousand six hundred Dollars, lawful money of 
the United States, on and after the severance, if ever, 
of the ecclesiastical connection of the parties of the 
first part with the Presbytery of New York, with inter- 
est from that date whenever it may occur, provided, 
however, that the Trustees of the Presbytery of New 
York shall first execute and deliver to the Westminster 
Presbyterian Church instruments in due form for the 
satisfaction and discharge of said three mortgages and 
procure said mortgages to be cancelled of record. 

VI. The officers of such corporation shall be two 
ministers, thirteen elders, nine trustees and seven dea- 
cons. 

(1) The names of the ministers are: Rev. RB. F. 
Sample, D. D. and Rev. E. M. Deems. 

(2) The names of the elders are : 

James H. Grovesteen, 
James M. Edgar, 
Franz G. Kindlund, 
Charles B. Dales, 
George R. Brown, 

J. Howard De Lamater, 
James L. Kemp, 
Richard Drummond, 
John H. Comfort, 
John D. Cluss, 

J. B. Lindsay, 
William E. Smith, 
George Ironsides. 


146 


147 


148 


149 


150 


15] 


152 


38 


(3) The names of the trustees are : 
John Stanton, 
Franz G. Kindlund, 
John Stanley, 
Herbert H. Woodhouse, 
Henry Hedden, 
William C. Kemp, 
Peter W. McIndoe, 
Thomas O. Morrison, 
Richard Drummond. 

(4) The names of the deacons are: 
Frederick P. Wood, 
John Stanley, 
Edgar: P. Mott, 
Alexander Miller, 
William F. Smith, 
Thomas O. Morrison, 
William C. Kemp. 

VII. The day of the annual election shall be the 
first Wednesday of April, 1890, and on said day annu- 
ally thereafter. 

VIIL. All other matters connected with the tempo- 
ralities of said corporation to be formed as afcresaid, 
shall be regulated and managed by the Board of Trus- 
tees of such corporation and all matters connected 
with the spiritual] interests of said corporation shall be 
regulated by the ministers, elders and deacons of such 
corporation in the exercise of the duties ordinarily de- 
volving upon such officers. 

IX. It is agreed that a petition in the ordinary form 
shall be presented to the Supreme Court by each of 
the parties hereto in accordance with the Laws of the 
State of New York and that this agreement and the 
said petition shall be executed on behalf of each of 
said corporations by the President of the Board of 
Trustees of each of said Corporations, respectively, 
and the corporate seals of each of said corporations 
shall be affixed thereto. 

In witness whereof the said The West Twenty-third 
Street Presbyterian Church has caused these presents to 
be signed by the President of its Board of Trustees and 


39 


its corporate seal to be affixed thereto and the said, 158 
The Westminster Presbyterian Church has also caused 
these presents to be signed by the President of its 
Board of Trustees and its corporate seal to be affixed 
hereto this third day of April, 1889. : 
THE West TWENTY-THIRD STREET 
PRESBYTERIAN CHURCH, 


(L. 8.) by F. Gusrar KInDLUND, 
President. 
Tuk WESTMINSTER PRESBYTERIAN 
CHURCH, 154 
(L. 8.) by Ricoarp Drummonp, 
President. 


Strate, Ciry AND County or NEw York, ss: 


On this 3rd day of April, 1889, before me came Franz 
GustaF KInDLUND with whom I am personally ac- 
quainted, who being by me duly sworn deposes and 
says: That he resides in the City of New York ; is 
the President of the West Twenty-third Street Pres- 155 
byterian Church, the corporation described in and 
which executed the foregoing instrument and of the 
Board of Trustees thereof; that the seal affixed to said 
instrument is the corporate seal of the said corpora- 
tion and was by him affixed thereto by the authority 
of said corporation and by the Board of Trustees 
thereof, and that he subscribed its and his name there- 
unto by like authority. 

Franz Gustar KINDLUND. 
Sworn to before me this 3rd 156 
day of April, 1889. 
Epwin B. Roor, 
Notary Public (135), 
Dery 2 Go, 


Stats, Ciry AND County or New York, ss: 


On this 3rd day of April, 1889, before me came 
RicHarD Drummond with whom I am personally ac- 
quainted, who being [by me duly sworn deposes and 


157 


158 


159 


160 


40 


says: That he resides in the City of New York ; is 
the President of the Westminster Presbyterian 
Church, the corporation described in and which exe- 
cuted the foregoing instrument and of the Board of 
Trustees thereof ; that the seal affixed to said instru- 
ment is the corporate seal of said corporation and was 
by him affixed thereto by the authority of said cor- 
poration and the Board of Trustees thereof and that 
he subscribed its and his name thereunto by like 
authority. 
Ricnarp DrumMMonD. 
Sworn to before me this 3rd 
day of April, 1889. 
Epwin B. Root, 
Notary Public (135), 
New York Co. 


V. That your petitioner’s real property is as follows : 

All that certain lot or parcel of land with the build- 
ings and improvements thereon erected, situate, lying 
and being in the City of New York and bounded and 
described, as follows: viz,— Beginning at a point on 
the southerly side of West 23rd Street distant One 
hundred feet westerly from the southwesterly corner of . 
Seventh Avenue and said West 23rd Street, running 
thence southwardly parallel with Seventh Avenue one 
hundred and eighteen feet and nine inches ; thence 
westwardly parallel with West 25rd Street one hundred 
feet ; thence northwardly again parallel with Seventh 
Avenue one hundred and eighteen feet and nine inches 
to the southerly side of West 23rd Street and thence 
eastwardly along said southerly side of West 23rd 
Street one hundred feet to the point or place of begin- 
ning. 


VI. That your petitioner’s personal property is as 
follows : 

One large Organ, 

One Cabinet Organ, 

One Piano, 

Mats, Carpets, Chairs, Settees, Stoves and Heaters 


41 


and other furnishings in and for the Church buildings 
on the premises above described. 


Hymn and Library Books. 


VII. That all your petitioner’s debts and liabilities 
are as follows: 


1—Mortgage covering the above premises 
beld by Nursery & Child’s Hospital, re- 
corded Liber 1682 of Mortgages at page 





SL ELA oo, Win ee DEB Sa, atop ReaeR ie a $13,000. 
Dees DIS CbOs MNOS se eee Cee 3,500. 
3—Bills payable 

Velulaye Bros. Coal__----- $79.25 

Gorton Bros. repairs------ 15. 

Abbotts Sons Hardware_-_ 5. 

Scrafford repairs_=._..----- 15.03 

Rosevelt car of Organ.._-- 18.75 

Pastors sélary.<—2%).o62-- 333.33 

— 366.36 


VIII. That the amount of your petitioner’s annual 
income is as follows: Five thousand three hundred 
and seventy five 80/100 Dollars. 


IX. That the sources of your petitioner’s income are 
as follows : 

Pew rents, envelope contributions, plate collections 
and special contributions. 


X. That your petitioner is connected with the 
Presbytery of New York and is subject to its advice 
and control; that it has submitted the question as to 
the advisability of said union and consolidation to the 
judgment of the Presbytery of New York and the re- 
sult has been that the said Presbytery has adopted a 
resolution of which the following is a copy : 

“After hearing statements from the Rey. Dr. Sample 
and Rey. Mr. Deems pastors, and the commissioners, 
respectively, of the West Twenty-third Street Pres- 
byterian Church and of the Westminster Presbyterian 


161 


162 


163 


164 


165 


166 


167 


168 


42 


Church, and listening to the proposed plan for a union 
and consolidation of said Churches, it was 

RESOLVED that in the judgment of the Presbytery, 
the plan for such union and consolidation is wise 
and judicious and the same is hereby approved.” 


XI. That a meeting of your petitioner’s corporation 
to consider and act upon the proposed union and con- 
solidation and the agreement and petition therefor, 
was called by a notice given in the same manner and 
for the same length of time as is provided for notices 
of election of trustees in Section 3 of Chap. 60 of the 
Laws of 1813, as amended by Chap. 209 of the Laws 
of 1875, and a copy of said notice is as follows : 

“ Notice is hereby given that there will be a meeting 
of the West Twenty-third Street Presbyterian Church 
on Wednesday, the third day of April, 1889, at 8 
o'clock P. M. for the purpose of determining whether 
there shall be a union of the Westminster Presbyterian 
Church with the West Twenty-third Street Presby- 
terian Church and to consider and act upon the pro- 
posed union and consolidation and the agreement and 
petition therefor.” 

That the same was read from the pulpit of your 
petitioners church on the 17th, 24th and 31st days of 
March, 1889. 


XIL. That the foregoing petition and agreement and 
the proposed union and consolidation were submitted 
to a vote of the persons entitled to vote at an election 
of trustees of your petiticner’s corporation and the 
said proposed union and consolidation and the said 
agreement and petition received the approval of three- 
fourths of the persons entitled to vote at an election of 
trustees of your petitioner’s corporation and the fol- 
lowing resolution was unanimously adopted : 

“ RESOLVED that the proposed union and consolida- 
tion of the West Twenty-third Street Presbyterian 
Church with the Westminster Presbyterian Church and 
the agreement and petition therefor, be and the same 
hereby are approved, and the President of the Board 


43 


of Trustees is hereby authorized to execute the said 
agreement and petition on behalf of the West Twenty- 
third Street Church, and to affix the corporate seal 
thereto and to cause said petition to be presented to 
the Supreme Court and application to be made 
thereto for such order in the premises as may be 


proper.” 


WHEREFORE your petitioner prays that an order may 
be granted for the union and consolidation of your 
petitioner with the Westminster Presbyterian Church 
and that the same may determine all the terms, con- 
ditions and provisions thereof. 

THe West TWENTY-THIRD STREET PRESBYTERIAN 

CHURCH. 

By 

(Corporate seal) I. Gustar KInDLUND, 
President. 
THERON G. STRONG, 
Attorney for Petitioner, 45 William St., New 
York City. 


State, Crry AND County or New YORK, 8s: 


F. Gusrar KinpLunp, being duly sworn, says: 
that he is the President of the West Twenty-third 
Street Presbyterian church, the petitioner above 
named and has been such for about one year passed ; 
that he has read the foregoing petition and knows the 
knows the contents thereof and that the same is true 
of his own knowledge, except as to the matters therein 
stated to be alleged on information and belief and as to 
those matters he believes it to be true. 

He further says that the reason this verification is 
not made by said petitioner is that it is a domestic 
corporation, that he is an officer of the same, to wit: 
the President, and that the sources of his information 
and the grounds of his belief are the parts which he 
has taken in the meetings of said corporation and in 
the transactious mentioned in said petition and infor- 


169 


170 


171 


172 


dt 


173 mation communicated to him by the officers, attorneys 
and agents of said corporation, and his confidence from 
personal acquaintance with such officers, attorneys and 
agents in the accuracy of the information imparted to 
him by them. 

He further says that the seal affixed to said petition 
is the corporate seal of said petitioner and was by him 
affixed to said petition by authority of said corporation 
and the trustees thereof. 

IF. Gustar KINDLUND. 

174 Sworn to before me this 16th 

day of April, 1889. 

Pate L. RUNKEL, 
Notary Public (71), 
Nee Ye Co: 


SUPREME COURT, 


City AND County oF New York. 





175 
In THE MATTER 


The Application of THe Twenty- 
THIRD STREET PRESBYTERIAN 
CHURCH OF THE City oF NEw York 
and THrE WESTMINSTER PRESBY- 
TERIAN CHURCH OF THE CITY OF 
New York for an order authoriz- 
ing said corporations to unite and 
consolidate under the name of the 
Westminster Presbyterian Church 
of West Twenty-third Street. | 


176 








’ The petition of the Westminster Presbyterian Church 
respectfully shows : 


I. That your petitioner is a religious corporation 
duly inccrporated under the Act entitled “ An act for 


45 


the Incorporation of Religious Societies,’ passed 177 


April 5, 1813, and the acts amendatory thereof. 


II. That your petitioner is desirous of uniting and 
consolidating with the West I'wenty-third Street Pres- 
byterian Church of the City of New York and an ar- 
rangement has been made with said West Twenty- 
third Street Presbyterian Church for a union and con- 
solidation with your petitioner subject to the consent 
of this Honorable Court. 


III. That the reasons for such union and consolida- 
tion are as follows : 

That your petitioner is the owner of a Church edifice 
with the lots on which the same stands situated on the 
north side of Twenty-second Street one hundred and 
eighty-seven feet and six inches east of the northeast- 
erly corner of Seventh Avenue and Twenty-second 
Street and it is only about seven hundred feet distant 


from the West Twenty-third Street Presbyterian - 


Church ; that by reason of the proximity of the two 
Churches, your petitioners believe that.the usefulness 
of each is impaired and that one Church in that locality 
is all that is required : that by reason of changes tak- 
ing place in its immediate vicinity and the tendency of 
residents of that portion of the City to move up town, 
the congregation worshipping in your petitioner’s 
church has been gradually diminished and its income 
correspondingly reduced, so that, at the present time 
the income derived by your petitioner is not sufficient 
to meet the expenses of caring for its property and con- 
ducting public worship and its usual weekly meetings 
and there is annually a considerable deficit of expenses 
which your petitioners are unable to meet ; that your 
petitioner’s church edifice is very much out of repair 
and requires an immediate expenditure of a consider- 
able sum of money to put it in proper condition and in 
order to do so, it will be necessary to create a debt 
against its property ; that your petitioner’s income is 
not derived from pew rents for the reason that a system 
of free pews is in operation, and its only source of in- 


178 


179 


180 


181 


182 


183 


184 


46 


come is as aforesaid, from voluntary subscriptions 
taken under what is known as the “ Envelope system ” ; 
that by reason of the diminishing number of stated 
worshippers and the large expenses attendant upon 
maintaining a pastorage and the ordinary public wor- 
ship, the only possible consequences of its continuance 
as a church with the ordinary church services will 
be to accumulate a constantly increasing indebtedness 
against its property ; that your petitioner has made 
arrangements subject to the approval of this Honorable 
Court with the West Twenty-third Street Presbyterian 
Church for a union and consolidation, as aforesaid 
upon the understanding that your petitioners and the 
congregation worshipping in the Westminster Presby- 
terian Church shall be accommodated in the West 
Twenty-third Street Presbyterian Church and shall be 
consolidated and united therewith ; that your petition- 
ers therefore believe it is desirable to sell its present 
church property and to use the proceeds in connection 
with the corporation formed by the union and consoli- 
dation of the West Twenty-third Street Presbyterian 
Church with your petitioner, as the property of such 
corporation and thereby the said corporation to be 
formed by said union and consolidation will be placed 
upon a satisfactory pecuniary basis and the religious 
needs of the locality in which your petitioner’s church, 
as well as said West Twenty-third Street Presbyterian 
Church is situated, will be fully supplied. 


IV. That the agreement made pursuant to the second 
Section of Chapter 209 of the laws of 1875, is as fol- 
lows : 


THis AGREEMENT made and entered into between The 
West Twenty-third Street Presbyterian Church of the 
City of New York of the first part, and the Westmin- 
ster Presbyterian Church, of the City of New York, of 
the second part, Witnesseth : 

Whereas each of the parties above named is a cor- 
poration duly incorporated under the laws of the State 
of New York, and 


AT 


Whereas the said corporations are desirous of unit- 
ing and consolidating under the name of the Westmin- 
ster Presbyterian Church of West Twenty-third Street, 
and 
Whereas the terms and conditions of this agreement 
are as hereinafter set forth, 

Now, therefore, in consideration of the premises and 
of the sum of One Dollar, the said corporations mu- 
tually agree to the following terms and conditions, to 
wit : 

I. Each of the parties hereto azrees to unite and 
consolidate with the other; such union and consolida- 
tion to be a corporation whose name shall be The 
Westminster Presbyterian Church of West Twenty- 
third Street. 

II. The Pastor of the West Twenty-third Street 
Presbyterian, to wit: Rev. R. F. Sample, D. D., and 
the Pastor of the Westminster Presbyterian Church, to 
wit: Rev. KE. M. Deems, shall each of them be a Pastor 
of the said Westminster Presbyterian Church of West 
Twenty-third Street until one year from the date of the 
entry of an order of the Supreme Court for the union 
and consolidation of the parties hereto under the name 
aforesaid, subject, however, to a continuance of them 
or either of them in said pastoral relation, such con- 
tinuance to be determined by a vote of the congregation 
in the same manner as in the case of a call to a pastor. 
They shall be co-equal in authority as such pastors and 
shall mutually agree for a division and discharge of their 
duties as such pastors. The Rev. R. F. Sample, D. D., 
shall occupy the parsonage now belonging to said West 
Twenty-third Street Presbyterian Church, and shall 
receive a salary of Four Thousand Dollars. ‘he Rev. 
EH. M. Deems shall receive a salary of Three Thousand 
Dollars. Neither Pastor snall be required to remain 
the entire year. 

III. The parties hereto, from and after the date of 
the entry of an order of the Supreme Court for the 
union and consolidation of the corporations aforesaid, 
shall occupy the Church edifice and its appurtenances 
now occupied by the West Twenty-third Street Presby- 


185 


186 


187 


188 


189 


190 


19] 


192 


48 


terian Church, as a place of public worship and for all 
ordinary Church purposes and from and after such 
union and consolidation, the parties hereto shall each 
have the same rights therein as now belong to the West 
Twenty-third Street Presbyterian Church. 

IV. The church edifice and property now occupied 
by the Westminster Presbyterian Church shall be sold 
as soon as practicable after the entry of an order for 
such union and consolidation, as aforesaid, consistent 
with obtaining a just and fair price for the same, and 
all questions connected with the sale of said property 
shall be determined by a vote of the Trustees of the 
corporation to be formed by the union and consolida- 
tion of the parties hereto. The proceeds of such sale 
shall be the property of the corporation formed by such 
union and consolidation and such disposition shall be 
made of the same as the Trustees of said corporation 
may determine; they shall also decide as to when and 
how and for what price said property shall be sold. 

V. Wuernas, there are three mortgages upon the 
property of the Westminster Presbyterian Church now 
held by the Trustees of the Presbytery of New York 
amounting in all to the sum of Twenty-two thousand 
six hundred ($22,600.) Dollars, Ir Is aGrEED that the 
corporation to be formed by the union and consolida- 
tion aforesaid shall execute and deliver to the Trustees 
of the Presbytery of New York a mortgage without 
bond upon the property now held by the West Twenty- 
third Street Presbyterian Church, upon the following 
terms and conditions, to wit : that said corporation to 
be formed as aforesaid shall well and truly pay unto 
the Trustees of the Presbytery of New York, their 
successors or assigns, the just and full sum of Twenty- 
two thousand six hundred Dollars, lawful money of 
the United States, on and after the severance, if ever, 
of the ecclesiastical connection of the parties of the 
first part with the Presbytery of New York, with inter- 
est from that date whenever it may occur, provided, 
however, that the Trustees of the Presbytery of New 
York shall first execute and deliver to the Westminster 


49 


Presbyterian Church instruments in due form for the 193 
satisfaction and discharge of said three mortgages and 
procure said mortgages to be eancelled of record. 
VI. The officers of such corporation shall be two 
ministers, thirteen elders, nine trustees and seven dea- 
cons. 
(1) The names of the ministers are: Rev. R. F. 
Sample, D. D, and Rey. E. M. Deems. 
(2) The names of the elders are : 
James H. Grovesteen, 
James M. Edgar, 194 
Franz G. Kindlund, 
Charles B. Dale, 
George BR. Brown, 
J. Howard De Lamater, 
James L. Kemp, 
Richard Drummond, 
John H. Comfort, 
John D. Cluss, 
J. B. Lindsay, 
William E. Smith, 195 
George Ironsides. 

(3) The names of the trustees are ; 
John Stanton, 
Franz Kindlund, 
John Stanley, 
Herbert H. Woodhouse, 
Henry Hedden, 
William C. Kemp, 
Peter W. McIndoe, ° 
Thomas O. Morrison, 196 
Richard Drummond, 

(4) The names of the deacons are : 
Frederick P. Wood, 
John Stanley, 
‘Edgar P. Mott, 
Alexander Millev, 
William F. Smith, 
Thomas O. Morrison, 
William C. Kemp. 


50 


197. +VIL. The day of the annual election shall be the 
first Wednesday of April, 1890, and on said day annu- 
ally thereafter. 

VILL. All other matters connected with the tempo- 
ralities of said corporation to be formed as aforesaid, 
shall be regulated and managed by the Board of Trus- 
tees of such corporation and all matters connected 
with the spiritual interests of said corporation shall be 
regulated by the ministers, elders and deacons of such 
corporation in the exercise of the duties ordinarily de- 

198 volving upon such officers. 

IX. It is agreed that a petition in the ordinary form 
shall be presented to the Supreme Court by each of 
the parties hereto in accordance with the Laws of the 
State of New York and that this agreement and the 
said petition shall be executed on behalf of each of 
said corporations by the President of the Board of 
Trustees of each of said Corporations, respectively, 
and the corporate seals of each of said corporations 
shall be affixed thereto. 

199 In witness whereof the said The West Twenty-third 
Street Presbyterian Church has caused these presents to 
be signed by the President of its Board of Trustees and 
its corporate seal to be affixed hereto and the said, 
The Westminster Presbyterian Church has also caused 
these presents to be signed by the President of its 
Board of Trustees and its corporate seal to be affixed 
hereto this third day of April, 1889. 

Tae WESTMINSTER PRESBYTERIAN 
CHURCH, 

200 (L. 8.) by RicHarp DroumMonpn, 
President. 
THe Wesr TWENTY-THIRD. STREET 

PRESBYTERIAN CHURCH, 
(Ue) by F. Gustar KinpLunp, © 
President. | 


SraTge, Ciry aND County OF New York, ss: 


On this 3rd day of April, 1889, before me came 
RicHarD Drummonp with whom I am personally ac- 


51 


quainted, who being by me duly sworn deposes and 201 
says: That he resides in the City of New York; is 
the President of the Westminster Presbyterian 
Church, the corporation described in and which exe- 
cuted the foregoing instrument and of the Board of 
Trustees thereof; that the seal affixed to said instru- 
ment is the corporate seal of said corporation and was 
by him affixed thereto by the authority of said cor- 
poration and the Board of Trustees thereof and that 
be subscribed its and his name thereunto by like 
authority. 202 

RicHarpD DRUMMOND. 
Sworn to before me this 3rd 

day of April, 1889. 
Epwin B. Roor, 
Notary Public (135), 
New York Co. 


StaTe, Criry AND County oF NEw York, ss: 


On this 3rd day of April, 1889, before me came FRANZ 203 
GusraF KinpLunD with whom I am personally ac- 
quainted, who being by me duly sworn, deposes and 
says: That he resides in the City of New York ; is 
the President of the West Twenty-third Street Pres- 
byterian Church, the corporation described in and 
which executed the foregoing instrument and of the 
Board of Trustees thereof; that the seal affixed to said 
instrument is the corporate seal of the said corpora- 
tion and was by him affixed thereto by the authority 
of said corporation and by the Board of Trustees 204 
thereof, and that he subscribed its and his name there- 
unto by like authority. 

Franz Gustar KINDLUND. 
Sworn to before me this 3rd 
day of April, 1889. 
Eipwin B. Root, 
Notary Public (135), 
BN Von GO, 


205 


206 


207 


208 


52 


V. That your petitioner’s real property is as follows : 

All those certain lots, pieces or parcels of ground 
with the brick building thereon situated, lying and be- 
ing in the Sixteenth (late Twelfth) Ward of the City 
of New York and which taken together are described 
as follows : 

Beginning at a point on the ncrtherly side of Twenty- 
second Street distant eastwardly from the LHasterly 
line of Seventh Av. one hundred and eighty seven feet 
and six inches running thence easterly along the said 
northerly line of T'wenty-second Street sixty-seven feet 
and six inches, thence northerly parallel with Seventh 
Avenue ninety eight feet and nine inches to the centre 
line of the block between Twenty-second and Twenty- 
third ; thence westerly along said centre line parallel 
with Twenty-second Street sixty seven feet and six 
inches thence southwardly and parallel with Seventh 
Av. ninety eight feet and nine inches to the northerly 
side of Twenty-second Street at the point of Begin- 
ning. 


VI. That your petitioner’s personal property is as 
follows : 

Organ, cabinet organ, pulpit, pews, cushions, settees 
chairs, tables, furnaces, stoves, gas fixtures and globes, 
carpets, mats and mattings, pew foot rests and other 
furnishings in and for the church buildings on the 
premises above described ; hymn books, prayer books 


and Sunday School Library books. 


VII. That all your petitioners debts and abilities 


are as follows : 

Robert Henderson 222329. 50 see ee eee ae $152.46 
Styles*and: Gash. eves. 322 Sas SE ee eo ee soe ree 
Consolidated; Gas:Co, 22422 So ee 23.12 
M) A bbotts:Sons #2522 ee ee 7.53 
Thomas: Rusko ot sot Lee eee eee 12.60 
TOF Morison 2 52si ee ee 4.64 
Pe Woalahtt ces ee ee ees 6 
Spita:&Henschilisc. pt ee ee ee 1.30 





(haem lity a oth ee SaaS eo 5. 209 
NEFPAw IO tiaeies foes a sae Ue Se Ae - 6.02 
PRUVORMESIIC Cee Maes St, See sy Ce eS So ais 2. 
SalaryOroauishee. ge sete tL See Eta S 350. 
Maem L ASLO. Seiten RS Pee ee etn 229.17 
PamCLOVIntencaAbOtbee 7. 2) She 80. 
MaAbbotta 222 _ 1-05 ( then bills were re- 1.05 
HiMeyers2e-. -- .15 < ceipted but not paid 75 
DaNibloe sn 5. ) by Treasurer--_-_--- 5. 
ANGE eee gS ed ee eet eae $913.89 


210 


Mortgage on its above described real estate 

dated November 19, 1853, to the Common- 

wealth Fire Insurance Company recorded 

Liber 457 of Mortgages at page 94__.__-- $13,000. 
Mortgage on its above described real estate 

dated January 10, 1854, to John Steward, 

John H. Neilley and James Glasford, re- 

corded in Liber 458 of Mortgage at page 

CAPA tn ca ly fa et ap oe a econ Reo egh Pede ep O aa 6,000. 914 
Mortgage on its above described real estate 

dated May 28, 1874 to the Trustees of the 

Presbytery of New York recorded Liber | 

1191 of Mortgages, page 164___-____---- 3,600. 


VILL. That the amount of your petitioner’s income 
is as follows: 

Three thousand six hundred and fifty six Dollars 
and thirty two cents. 


tN 
— 
Ww 


IX. That the sources of your petitioners income are 
as follows : 

Envelope contributions, basket contributions and 
special contributions. 


X. That your petitioner is connected with the 
Presbytery of New York andis subject to its advice 
and control; that it has submitted the question as to 
the advisability of said union and consolidation to the 
judgment of the Presbytery of New York and the result 


213 


214 


216 


54 


has been that the said Presbytery has adopted a reso- 
lution of which the following is a copy: 

‘“‘ After hearing statements from the Rev. Dr. Sample 
and Rev. Mr. Deems, Pastors, and the commissioners 
respectively of the West Twenty-third Street Presby- 
terian Church and of the Westminster Presbyterian 
Church and listening to the proposed plan for a union 
and consolidation of said churches, it was 

Resolved that the judgment of the Presbytery, the 
plan for such union and consolidation is wise and judi- 
cious and the same is hereby approved.” 


XI. That a meeting of your petitioner’s corporation 
to consider and act upon the proposed union and con- 
solidation and the agreement and petition therefor, 
was called by a notice given in the same manner and 
for the same length of time as is provided for notices 
of election of trustees in Section 3 of Chap. 60 of the 
Laws of 1813, as amended by Chap. 209 of the Laws of 
1875 and a copy of said notice is as follows : 

“ Notice is hereby given that there will be a meeting 
of the Westminster Presbyterian Church on Wednes- 
day the third day of April, 1889, at 8 o’clock P. M. for 
the purpose of determining whether there will be a 
union of the West Twenty-third Street Presbyterian 
Church with the Westminster Presbyterian Church 
and to consider and act upon the proposed union and 
consolidation and the agreement and petition therefor.” 

That the same was read from the pulpit of your 
petitioners church on the 17th, 24th and 31st days of 
March 1889. 


XII. That the foregoing petition and agreement and 
the proposed union and consolidation were submitted 
to a vote of the persons entitled to a vote at an elec- 
tion of the trustees of your petitioners corporation and 
the said proposed union and consolidation and the 
said agreement and petition received the approval of 
three-fourths of the persons entitled to vote at an elec- 
tion of trustees of your petitioners corporation and 
the following resolution was unanimously adopted : 


55 


“ fesolved that the proposed union and consolidation 
of the Westminster Presbyterian Church with the 
West Twenty-third Street Presbyterian Church and 
the agreement and petition therefor, be and the same 
hereby are approved and the President of the Board 
of Trustees is hereby authorized to execute the said 
agreement and petition on behalf of the Westminster 
Presbyterian Church and to affix the corporate seal 
thereto and to cause said petition to be presented 
to the Supreme Court and application to be made 
thereto for such order in the premises as may be 
proper.” 


WHEREFORE your petitioner prays that an order may 
be granted for the union and consolidation of your 
petitioner with the West Twenty-third Street Preshy- 
terian Church and that the same may determine all the 
terms, conditions and provisions thereof. 

THE WESTMINSTER PRESBYTERIAN CHURCH, 
By 
[Corporate Seal. | RicHarD DrumMonp, 
President. 
Tueron G. SrRona, 
Attorney for Petitioner, 45 William St., New 
5 York City. 


Srate, Crry AND County oF New York, ss: 


Ricnarp DrumMonp being duly sworn, says: that he 
is the President of the Westminster Presbyterian 
Church, the petitioner above named and has been for 
about 10 years passed; that he has read the fore- 
going petition and knows the contents thereof and 
that the same is true of his own knowledge, except as 
to matters therein stated to be alleged on information 
and belief, and as to those matters he believes it to be 
true. | 

He further says that the reason this verification is 
not made by said petitioner is that it is a domestic 


217 


218 


219 


220 


221 


222 


223 


224 


56 


corporation ; that he is an officer of the same, to wit: 
the President, and that the sources of his information 
and the grounds of his belief are the parts which he 
has taken in the meetings of said corporation and in 
the transactions mentioned in said petition and infor- 
mation communicated to him by the officers, attorneys 
and agents of said corporation, and his confidence from 
personal acquaintance with such officers, attorneys and 
agents in the accuracy of the information imparted to 
him by them. 

He further says that the seal affixed to said petition 
is the corporate seal of said petitioner and was by him 
affixed to said petition by authority of said corpora- 
tion and the trustees thereof. 

RicHarD DRrumMonp. 
Sworn to before me this 16th 
day of April, 1889. 
Pururp L. RuNKEL, 
Notary Public (71), 
N. Y. Co. 


57 


SUPREME COURT, 


County oF New York. 


] 


Watrter FInpuay, ET AL., suing on | 
behalf of themselves and all other | 
members of the Westminster Pres- | 
byterian Church of West Twenty- 
third Street, 





Plaintiffs, 
AGAINST | 


JOHN Lioyp LEs, ET AL., 
Defendants. 





Strate oF New York, Bs 4 
City and County of New York, § ~~ 


Frep E. SHEARER being first duly sworn, says he is 
Stated Clerk of the Presbytery of New York and has 
been such Stated Clerk since on or about the Ist day 
of May 1902 and as such Stated Clerk has in his cus- 
tody and control the records of said presbytery. That 
the records in his possession show that the said pres- 
bytery was constituted on the 21st day of June, 1870, 
and included within its membership all presbyterian 
churches belonging to the Presbyterian Church in the 
United States of America within Manhattan Island and 
that the said Presbytery of New York was the legal 
successor to the second, third and fourth presbyteries 
of New York, and the former Presbytery of New York; 
said Presbytery of New York and said second, third 
and fourth presbyteries having theretofore existed 
within said territory or portions of the same and rep- 
resenting divisions of the Presbyterian Church which 
were united into and formed one church known as the 
Presbyterian Church of the United States of America 
in the said year 1870. 


226 


227 


5 


2 


28 


229 


230 


231 


232 


58 


That it is affiant’s duty to prepare the records and 
enroll the same of the said Presbytery of New York, 
and that the record of proceedings of said presbytery 
as set forth in the complaint in this action is a true 
and correct statement of the proceedings of said pres- 
bytery and the said complaint contains true and cor- 
rect copies of the records of said presbytery ; that all 
of the letters and communications set forth in the re- 
port of the action of said presbytery addressed to 
affiant are in the possession of affiant as the clerk of 
said presbytery and have been received by affiant and 
that the signatures attached thereto are the genuine 
signatures of the parties purporting to have signed the 
same, said signatures being known to this affiant. 

Affiant further says that the book attached to the 
original complaint herein entitled “Government, Dis- 
cipline & Worship of the Presbyterian Church in the 
U.S. A.’, is an official publication of the Presbyterian 
Board of Publication and Sabbath School Work, the 
same being the medium of publication of thé Presby- 
terian Church of the United States of America and the 
said volume containing the Form of Government aud 
Book of Disciplive Directory for Worship and Acts of 
the general assembly is final authority in the judica- 
tories of the Presbyterian Church in the United States 
of America. 

Affiant says further that as such Stated Clerk he has 
knowledge of the proceedings of the synod of New 
York, which said synod of New York embraces ‘vithin 
its jurisdiction and control all the churches of the 
presbyterian church of the United States of America 
within the State of New York and New England and 
that said synod has taken no action respecting the 
transfer of the Westminster Presbyterian Church cf 
West Twenty-Third Street from the jurisdiction and 
control of the Presbytery of New York and looking to 
the placing of said church under the jurisdicton and 
control of any other presbytery within the boundaries 
of said synod. Affiant says that Rule 20 of the stand- 
ing rules of the presbytery of New York is as follows: 

“20. It shall be deemed irregular for any minister or 


59 


licentiate to preach statedly in any vacant church 
under the care of the presbytery, until he has obtained 
the approbation of the presbytery or sanction of the 
Moderator’s Advisory Council.” 

That since the action of said presbytery declaring 
vacant the pulpit of the Westminster Presbyterian 
Church of West Twenty-Tbird Street, no action has 
been taken by said presbytery respecting the occupa- 
tion of the said pulpit regularly under said Rule 20. 
A ffiant says further that he has examined in the Clerk’s 
Office of the County of New York the proceedings re- 
lating to the organization of the said Westminster 
Presbyterian Church of West Twenty-Third Street 
and that Exhibit “ A” attached to the bill of complaint 
herein is a copy of the said proceedings found therein. 

FREDERICK EK, SHEARER. 
Sworn to before me this 262 


day of March, 1906. § 
B. W. J. Fox, 
[ SEAL. | Notary Public, 
Kings Co., 
NY. 


Certificate filed in New York County. 


[29527 | 


233 


234 


236 





are 
one 


es 


€ 


Pe 


=: 





oe: 



















UPON APPLICATION FOR PRE- 
- LIMINARY INJUNCTION. 





Facts. 


_ mentary record. 

% On and prior to the 31st day of January, 1906, the 
pe Wedtminster Presbyterian Church of West Twenty- 

Third Street in the a of "New York existed as a 


case at bar. This Simone corporation was 
ned upon the 16th of April, 1889, by the consoli- 
n of two pre-existing churches one known as the 
« Westminster Presbyterian Church” and the other as 

; ie est Twenty- Third Street Presbyterian Chureh i. 


») 

of New York isa part of the Presbyterian Church 
in the United States of America, and under the form 
of Government and Discipline of the Presbyterian 
Church is the judicatory in the Presbyterian Church of 
the United States of America having supervision and 
control over individual churches within its bounda- 
ries; over the presbytery is the synod, and over the 
synod is the general assembly. (See as to the status 
of the West Twenty-Third Street Presbyterian Church: 
and the Westminster Presbyterian Church, the peti- 
tions of these churches respectively in Exhibit “ A ” 
to the complaint. As to their subordination to the 
presbytery, see paragraph 10 of petition of each of 
said churches, Exhibit A and Form of Government 
Chapter X.) 

On the 31st of January, 1906, at a congregational 
meeting of the members of Westminster Presbyterian 
Church of West Twenty-Third Street, resolutions were 
passed severing the connection of the said church from 
the Presbytery of New York and announcing their in- 
tention to be independent of that body, requesting 
Rev. John Lloyd Lee, the pastor, to join in the act of 
severance and withdrawal and authorizing the clerk to 
transmit a draft of those resolutions to the Stated 
Clerk of the New York Presbytery (Complaint, p. 10). 
These resolutions were duly transmitted to Presbytery 
over the signature of the clerk of the meeting and at 
the same time the pastor, defendant Lee, in a separate 
communication to the Stated Clerk of Presbytery com- 
municated the fact that he had renounced the jurisdic- 
tion of the church by becoming independent and called 
attention to Section 53 of the Book of Discipline and 
claiming his right under that section (Complaint, pp. 
11,12). That section provides : 


“Tf a minister not otherwise chargeable with offense, 
renounces the jurisdiction of this Church by abandon- 
ing.the ministry or becomizg independent, or joining 
another denoraination not deemed ‘heretical without a 
regular dismissal, the Presbytery shall take no other 
action than to record the fact and erase his name from 
the roll.” (Book of Discipline, p a 


5) 


Upon receipt of the foregoing communication the 
matter was regularly presented to Presbytery and that 
body took action first with respect to defendant Lee, 
by making record of the fact of his renunciation of the 
jurisdiction of the Presbyterian Church in the United 
States of America and the erasing of his name from the 
roll of the Presbytery, and it also declared the effect of 
that to be that the pastoral relation between the defend- 
ant Lee and the Westminster Presbyterian Church of 
West Twenty-third Street had ceased to exist, and in 
accordance with the uniform practice, in such cases, and 
paragraph four of Chapter IX of the “ Form of Gov- 
ernment ”, the Presbytery appointed as moderator of 
the Session of the Westminster Presbyterian Church 
of West Twenty-third Street, Rev. George Alexander, 
D. D., one of its members (Complaint, pp. 12-15). 
The explanation of this action is simple, and is 
that up to that time Presbytery had no knowl- 
edge of any action on the part of the session of the 
Westminster Presbyterian Church of West Twenty- 
third Street, repudiating the jurisdiction of Presbytery. 
Thereupon Rey. George Alexander addressed a com- 
munication to the Clerk of the Session advising 
him of the appointment by Presbytery of himself 
as moderator of the Session, and asking the Clerk 
of the Session to consult with the other mem- 
bers of the session and ascertainwhen and where 
it would be agreeable to the Session to have the 
Moderator call a meeting (Complaint, p. 16). In answer 
to this said Alexander receiveda communication over 
the signature of the Clerk, and stated to be by the in- 
struction of the Session, to the effect that the Session 
fully concurred in the action of the Church at the 
meeting on January 31st, and joined in the withdrawal 
from the jurisdiction of Presbytery, further repudiat- 
ing any right or authority on the part of the Presby- 
tery, or of any one representing Presbytery to exercise 
any jurisdiction whatsoever in the affairs of the Church 
or of the Session (Complaint, pp. 16,17). This was 
duly reported to Presbytery, and thereupon the Pres- 
bytery in view of the proceedings, First, of the con- 


4 


gregation ; Second, on the part of tue Pastor; and Third 
of the acticn of Presbytery with respect thereto; and 
Fourth of the Session, all of which were recited and 
fai y set forth, proceeded in the exercise of its powers 
as vested in it by the Form of Government (particularly 
Section 8, of Chapter 10), to pass resolutions to the effect 
that in view of their refusal to acknowledge the juris- 
diction of Presbytery, the members of the Session should 
be deposed from their offices as ruling elders in the 
Presbyterian Church, and forbidden to exercise any of 
the duties of said office in said Westminster Pres- 
byterian Church of West Twenty-third Street, 
and also declaring the effect of their conduct to be that 
inasmuch as they had renounced the jurisdiction of the 
Presbyterian Church in the United States of: America 
they had thereby removed themselves from its member- 
ship, and the Presbytery recognized the fact, and or- 
dered their names to be erased from the roll of mem- 
bership of the Church (Complaint, pp. 17-25). 

Prior to the Meeting of January 31st, 1906, and in 
April, 1905, the congregation of the Westminster Pres- 
byterian Church of West Twenty-third Street had taken 
action under the Statutes of New York, by which the 
Pastor and Members of the Session became the Trus- 
tees of the Church. The incumbency of the oftice of. 
Trustee thereafter depended under the Statute of New 
York to which reference will be hereafter made, first, 
to the fact of the party’s being a member of the Church, 
and, second, upon the fact of his being a member of the 
Session. The plaintiffs are members of Westminster 
Presbyterian Church of West Twenty-third Street, who 
have not participated in the movement of secession 
from the Presbytery, and from the Presbyterian Church 
in the United States of America, and inasmuch as all 
the Trustees participated in that movement as shown 
by the communications to and from the session, these 
members who have not participated in such 
secession bring this suit on behalf of themselves 
and all other members of the Westminster Pres- 
byterian Church of West Twenty-third Street, to enjoin 
the further use by the defendants claiming to be trus- 


5 


tees and pastor of that Church of the property be- 
longing to that Church, It is not claimed by the 
plaintiffs that the defendants and other members 
of that Church may not determine for themselves their 
ecclesiastical relations. It is claimed, however, that 
the necessary consequence of the withdrawal from the 
jurisdiction and control of Presbytery, or withdrawal 
from the Presbyterian Church in the United States 
of America, is that such members of the church as 
remain are entitled to the possession of the property 
under the advice and control of Presbytery for the 
purpose of re-organizing the Church. The Presbytery 
of New York, in the exercise of its power of supervision, 
duly appointed a committee to call a meeting of such 
members for the election of ruling elders, and to 
advise under the Form of Government and Book of 
Discipline, such action as would be proper in the 
premises (Complaint p. 25). An examination of the 
Statutes of New York relating to the powers of Trus- 
tees and of the decisions which have been made upon 
the Statutes as they now exist, and such as control 
this consolidated religious corporation of 1889 in the 
Courts of New York, and the current of authority in 
other States leave, as we think, no doubt, as to the 
rights of the plaintiffs in the premises. 


I. 
Statutes. 


The Law of 1813 (Chapter 60), entitled “An Act 
to provide for the incorporation of religions societies ” 
was the general law in the State of New York upon the 
subject until the general revision of the laws relating 
to religious corporations in the year 1895. This act 
was materially modified in particulars relating to the 
case before the court, by Chapter 79 of the Laws of 
1875. This provided in section 4: 


“The trustees of any church, Wi Nie or relig- 
ious society incorporated under section 3 of the above- 


6 


mentioned act, shall administer the temporalities 
thereof and hold and apply the estate and property 
belonging thereto and the revenues of the same for the 
benefit of such corporation, according to the discipline, 
rules, and usages of the denomination to which the 
church members of the corporation belong, and it shall 
not be lawful for the trustees to divert such estate, 
property, or revenue to another purpose, except 
towards the support and maintenance of any religious, 
benevolent or other institution connected with such 
church, cougregation or religious society.” 


By Chapter 176 of the laws of 1876, section 1, of said 
chapter repeats the same requirements, extending the 
language to include the rector, wardens, vestrymen, 
consistory, or session of any church. This remained 
the law until the enactment of Chapter 723 of the laws 
of 1895, which is entitled ‘“‘ An Act in relation to relig- 
ious corporations constituted under Chapter 42 of the 
General Laws,” which revised the laws relating to re- 
ligious corporations, and repealed the law of 1813, en- 
titled ‘‘ An Act to provide for the incerporation of re- 
ligious societies,’ and the amendatory and supple- 
mentary acts, running down to 1894. And in section 
5 of this act there was reversion again to the language 


of the Act of 1875. It provided : 


“The trustees of every religious corporation shall 
have the custody aud coutrol of the temporalities 
and property belonging to the corporation and of 
the revenues therefrom and shall administer the same 
in accordance with the discipline, rules, and usages 
of the religious denomination or ecclesiastical gov- 
erning body, if any, with which the corporation is 
connected, and with the provisions of law relating 
thereto for the support and maintenance of the cor- 
poration or of some religious, charitable, benevolent, 
or educational object conducted by it, or in connec- 
tion with it, or with such denomination, and they 
shall not use such property or revenues for any other 
purpose or divert the same from such uses. By-laws 
duly. adopted at the meeting of the members of the 
corporation shall control the action of its trustees ”. 


It is to be noted that this, while generally following 
the language of the Act of 1875, emphasizes the con- 


er 


nection of the corporation with the ecclesiastical 
governing body of the religious denomination with 
which it may be connected, and limits the use of the 
property to some religious, charitable, benevolent, or 
educational object connected with the corporation, or 
with the denomination. 

The first paragraph of section 15 of the same Act 
still further emphasizes the recognition by the law of 
such connection with the denomination in the matter 
of property. It provides : 


* Property of extinct churches. Such incor- 
porated governing body may decide that a church, parish 
or society in connection with it or over which it has 
ecclesiastical jurisdiction, has become extinct, if it has 
failed for two consecutive years next prior thereto 
to maintain religious services according to the dis- 
cipline, customs, and usages of, such governing body, 
or has had less than thirteen resident attending mem- 
bers paying annual pew rent or making annual con- 
tribution towards its support, and may take posses- 
sion of the temporalities and property belonging to 
such church, parish, or religious society and manage ; 
or may, in pursuance of the provisions of law relat- 
ing to the disposition of real property by religious 
corporations, sell or dispose of the same and apply 
the proceeds thereof to any of the purposes to which 
the property of such governing religious body is de- 
voted, and it shall not divert such property to any 
other object ”. 


By Chapter 97 of the Laws of 1902, entitled “ An 
Act to amend the religious corporations law relating to 
Presbyterian Churches,” the provisions relating to 
trustees are continued. By paragraph 3, Section 46, 
of that Act, it is provided: 


“The trustees of an incorporated church to which 
this article is applicable, shall have the custody and 
control of all the temporalities and property belong- 
ing to the corporation and of the revenues from such 
property, and shall administer the same in accordance 
with the discipline, rules, usages, laws and book of 
government of the religious denomination or ecclesi- 
astical governing body with which the church is con- 
nected, and with the provisions of law relating thereto, 
for the support and maintenance of the church cor- 
poration or providing the members thereof at a cor- 


8 


porate meeting thereof shall so authorize, of some re- 
ligious, charitable, benevolent or educational object, 
conducted by such church, or connected with it, or 
with the denomination with which it is connected, and 
they shall not use such property or revenue for any 
other purpose or divert the same from such use”. 


The language of the statutes of New York, there- 
fore, since 1875, with respect to the power of trustees 
of religious corporations over the property in their 
custody distinctly recognizes the rights of the denom- 
ination. 

By Chapter 97, Section 41, of the Laws of 1902, it is 
provided that : 


“1. If the trustees of an incorporated Presbyterian 
Church, in connection with the Presbyterian Church in 
the United States of America, shall at any time be 
elective trustees and not trustees by virtue of being 
the spiritual officers, the church may, at an annual cor- 
porate meeting, if notice thereof be given with the 
notice of such meeting, determine that the deacons 
thereof, or the pastors, ruling elders and the deacons 
thereof, or the pastor and the ruling elders thereof, 
shall thereafter constitute the trustees thereof, and 
thereupon the presiding officer of such meeting and at 
least two: other persons present thereat, shall sign, 
acknowledge, and cause to be filed and recorded, a cer- 
tificate stating the fact of such determination, the 
names of the officers determined upon to be the 
ex officio trustees thereof, and thereupon the terms of 
oftice of such elective trustees shall cease and the 
officers determined upon by such corporate meeting 
and their successors in office, shall, by virtue of their 
respective offices be trustees of such church.” 


Action was taken under this section by the con- 
eregation of Westminster Presbyterian Church of West 
Twenty-third street, and the pastor and ruling elders 
were constituted the trustees in April, 1905. By section 
2 of article 46 of that act it is further provided that: 


“Tf any trustee of an incorporated church to which 
this article is applicable, declines to act, resigns or 
dies, or having been a member of such church, ceases 
to be such member, or not having been a member, 
ceases to be a qualified voter at a corporate meeting 
thereof, his office shall be vacant.” 


II. 
. Decisions. 


Under the Acts of 1875 and 1876, there have been 
several decisions, which cover all of the questions in 
this case. The first was the case of First Reformed 
Presbyterian Church y. Bowden, 10 Abbotts New 
Cases, p. 1, decided on a motion to dissolve an in- 
junction in the New York Supreme Court, Special 
Term, 7th District, in December, 1860. The action 
was brought by the church against Samuel Bowden. 
The church members of the corporation, plaintiff, 
belonged to the Reformed Presbyterian Church of 
North America. Eleven elders commonly composed 
the session. The church had had no pastor since De- 
cember Ist, 1876. Its pulpit had been supplied by 
persons designated hy the Rochester presbytery of 
that church. The defendant Bowden had been, for a 
long time, such pastor and for thirty years belonged 
to that presbytery. After he ceased to be pastor, a 
majority of the persons in the society extended a call 
to him; but this act was not approved by the presby- 
tery, and it would not permit his installation. There- 
upon the defendant Bowden took measures to sever 
his relations with the Reformed Presbyterian Church, 
and to establish connections with another religious 
denomination known as the Presbyterian Church. In 
October, 1880, a majority of the congregation, including 
three of the trustees, voted to apply to the Rochester 
Presbytery of the Presbyterian Church, with the 
object and purpose of changing the ecclesiastical 
connection of the plaintiff from the Reformed 
Presbyterian Church to the Presbyterian Church 
and for the purpose of diverting the temporalities 
of the plaintiff to the use of another religious 
denomination. The defendant Bowden also persisted 
in preaching in the plaintiff's pulpit in contempt of the 
rules and discipline of the church. An injunction was 
granted on the plaintiff's application and this motion 


10 


was to dissolve it. McComprr, J., after stating the 
facts, says: 


“ Prior to the passage of the Act of 1875, Chapter 
79, the courts of this State took no notice of the de- 
nominational character of religious corporations and 
consequently could not enforce any ecclesiastical law 
or rule of church government which did not spring 
from the corporation itself but was imposed upon it 
from without”. 

Citing : 

Petty v. Tooker, 21 N. Y. 267; 

Gram vy. Prussia, &c., German Society, 36 
100161; 

Trustees St. Jacob’s Lutheran Ch. of Eden 
v. Bly, 73 zd. 323. 

People e« rel. Dilcher v. Ger. U. Ev. 
Church, 538 7d. 103. 

Watkins v. Wilcox, 4 Hun, 220. 


Then, after quoting the Act of 1875, above referred 
to, he says: 


“The facts disclosed in the affidavits bring this case 
with peculiar force within the provisions of that 
statute. Those facts are in brief that the defendant 
Bowden’s further services as pastor were not approved 
by the ecclesiastical authority to which his church was 
subordinate. Dissatisfied with this he, with a ma- 
jority of the trustees, took steps to form new religious 
connections and to carry the property of the church, 
as well as the congregation, along with him. With the 
personal freedom and action of the trustees the statute 
does not meddle; but it does say to them, first, 
‘“ When you cease to be members of the church, con- 
gregation, or society, by removal or otherwise, you 
shall cease to manage the affairs of that church ; and, 
‘second, that the temporalities of the church shall be 
administered for the benefit of that corporation, ac- 
cording to the discipline and laws of the denomination 
to which the church members of that corporation be- 
long. In these two particulars, the defendants are 
shown to be within the condemnation of the statutes. 
It is therefore the duty of the court, under the 
authority given by the sixth section of the Act to 
interfere by injunction and thus prevent the diversion 
of the property and revenues of this church ”. 


11 


Further, as to the authority of a minority of the 
trustees consisting of ore trustee to institute the ac- 
tion in the name of the corporation, he says : 


“ Under the case as thus admitted, there can be no 
doubt of the power of that trustee to institute this ac- 
tion in the name of the corporation. lndeed, had all 
of the trustees followed the pastor in this hegira, the 
church and society would not have been remediless, for 
in such cases, any member of the church could have 
brougnt an action, if not in the name of the corpara- 
tion, at least in his own name, for the benefit of all the 
members. Greaves v. Gouge, 69 N. Y. 154.” 


Order of injunction granted. 

This order was affirmed on appeal by the General 
Term adopting the opinion of McComserr, J. (10 Ab- 
botts N. C., 1.) 

The case of First Reformed Presbyterian Church vy. 
Bowden, above alluded to, also came before the Gen- 
eral Term of the Fourth Department and is reported 
under the same title in 14 Abbotts New Cases, 356. 
This was upon a second appeal from an order denying 
defendant’s motion to dissolve the injunction. ‘The 
first motion before McComper, J., was upon the 
plaintiff's papers alone, but in this latter appeal there 
were affidavits from the defendant and an answer of the 
defendant, and on these the motion was made. In this 
latter motion and the appeal therefrom the question 
was again considered by Judges SmirH, HARDEN and 
Haicur. The question particularly pressed upon the 
court was that the minority trustee could not invoke 
the remedy by injunction. Concerning this, SMIrH, 
il GAYS. : 


“ By whom may this statutory remedy be invoked ? 
If the wrongdoer is not one of the trustees, doubtless 
by the trustees in the name of the corporation. 
Why ? Because the statute charges them with the 
care of the temporalities of the corporation and impli- 
edly makes it their duty to prevent any diversion of 
them. So, if the wrongful act be done bya mi- 
nority of the trustees, it can hardly be questioned 
but that the majority may sue in the name of the 


12 


corporation. And if all the trustees were engaged 
in despoiling the corporation, any private mem- 
ber of the corporation might bring suit on 
behalf of himself and the other members, but 
in such case itt would be necessary to sue in 
his own name and make the trusiees and the 
corpsration defendants. (3 Paige, 233). But is 
that course necessary or proper where one of the 
trustees (although a minority of the whole number) is 
not implicated in the wrong? He is not divested of 
his office or of his powers and duties by the unfaith- 
fulness of his colleagues. They by their misconduct 
have virtually abdicated their official functions, so far 
as the bringing of suit is concerned, and why may he 
not sue in the name of the corporation ?” 


14 Abbotts New Cases, 356. 


Motion to dissolve denied. 

In Isham vy. Fullager, 14 Abbotts New Cases, 363, 
the interpretation of these acts of 1875 and 1876 was 
presented to the Special Term of Chatauqua County, 
BarkeEr, J., upon the following state of facts : 

The Presbyterian Church of Dunkirk was incorpo- 
rated under the law of 1813 and was connected with 
the Presbyterian denomination, and was connected 
with and subject to the control of the pres- 
bytery of Buffalo. Its pastor was one Adams, who 
had been regularly ordained as a minister of the Pres- 
byterian Church, and installed as pastor over this 
Dunkirk church in the summer of 1880. By the 
action of the Buffalo presbytery he was deposed from 
his office on the charge of unsoundness in faith and 
doctrine. Notwithstanding this, the majority of the 
board of trustees who were defendants in the action, 
maintained Adams as pastor, and opened the church 
for him, and allowed him to occupy the pulpit as 
formerly. This position of Mr. Adams in disregarding 
the action of the presbytery, and of the majority of 
the trustees was concurred in by a majority of 
the members of the First Presbyterian Church of 
Dunkirk. The plaintiffs in the action were the minor- 
ity of the church members who sought to sustain the 


13 


decision of the presbytery, and Mr. Justice Barker 
thus states their contention : 


““ Upon these facts the plaintiffs seek to restrain the 
trustees and officers of the corporate body from opening 
the church and suffering Mr. Adams to oceupy the 
pulpit as minister over this congregation, because 
being a fuct deposed from the holy office of minister, 
it is contrary to the discipline, rules, and usages of the 
Presbyterian Church for him to continue that relation 
with the society. That it is wrong and an offense to 
their religious convictions to be compelled to receive 
from a deposed minister spiritual instruction or the 
sacraments recognized by this denomination. 

The trustees have not sought, as yet, to sever this 
society from the ecclesiastical relations which it held 
at the commencement of this unfortunate controversy 
with the high judicatories of the presbyterian govern- 
ment; but insist that their action is defensible and 
loyal to the faith and polity of the Presbyterian 
Church. That the attempts of the presbytery to de- 
pose Mr. Adams was unjust; without good and sufh- 
cient reason ; that he is true and sound in faith and 
doctrine ; that the adherence which they and a majority 
of the congregation manifest towards Mr. Adams is 
from motives and convictions entirely consistent with 
their faith as presbyterians, which they have not re- 
linquished.”’ 


The learned judge then considers the contention of 
the defendants that the majority of the members of the 
church were authorized to determine respecting the 
matters of which they were complained of, and says in 
that particular : 


“Tt is argued by the learned counsel for the defend- 
ants that ‘the church or denomination’ as mentioned 
in the late acts, poimt to the local church or society 
and the members thereof and that it is the rules, cus- 
toms, and discipline of this body that the trustees are 
to observe and follow in administering the duties and 
trusts conferred upon them. That their action is in- 
dorsed by a majority of the members of the local 
society and therefore their conduct is justified and the 
meaning and intention of the law observed. In in- 
stances where the local religious society, by the nature 
and character of its organization, is strictly independ- 


© 


14 


ent of other ecclesiastical organizations and so far as 
its church government is concerned owes no fealty or 
obligation to any higher authority, the argument is 
sound and obviously. true for the reason that no other 
body or society could be interested. Such an organ- 
ization is independent, governed solely by itself. It 
can and may create its own form of government and 
establish its own faith and doctrine, create its own 
customs and usages and alter them at pleasure. 

But to hold in this case that the local society is the 

‘church or denomination’ whose usages and discipline 
the defendants, as trustees, must observe, is to ignore 
an admitted and prominent fact. 

In the presbyterian form of government, the local 
congregation is but a member of the larger and more 
important religious organization, and is under its goy- 
ernment and control and is bound by its orders and 
judgments in purely spiritual matters. There are, in 
this system of church organization, three judica- 
tories or representative bodies, the session, the 
presbytery, and general assembly. The purpose, 
power and jurisdiction of each is distinctly stated and 
promulgated in the printed books containing its his- 
tory, articles of faith and ordinances which constitute 
the body of the ecclesiustical law which governs this 
denomination. The church session repiesents and is 
chosen by and from the local society, but it has no 
authority to create and issue rules of discipline and 
establish usages and customs in religious matters ; in 
this respect it is wholly subordinate tothe presby tery, 
which body is vested with the functions “to resolve 
questions of doctrine and discipline”, ‘to ordain, in- 
stal, remove, and judge minsters ”, and, in general, “ to 
order whatever pertains to the spiritual welfare of the 
churches under their care.” The jurisdiction possessed 
by the higher tribunals, the synod and _ general 
assembly, it is unnecessary to mention. It is therefore 
altogether certain that so far as this particular denom- 
ination is concerned, it is not the usages and customs 
of the iocal congregation or the session of the local 
ehurch that the trustees are under obligation to observe 
and carry out. * * * This to my mind is a plain 
case where the trustees are using a portion of the tem- 
poralities of the corporation contrary to the usages, 
customs and discipline of the Presbyterian Church to 
which this corporation is attached. * * * It is 
now well settled law that one alone of many incorpora- 
tors can file a bill in his own name on behalf of all the 


15 


other incorporators who feel aggrieved to prevent and 
restrain the officers and agents of a civil and private 
incorporated body from diverting and misusing the 
property funds and revenues belonging to the cor- 
poration.” 


Injunction granted. 

In August, 1882, at Special Term, this same case 
again came before the courts on a motion for an in- 
junction restraining the trustees from closing the 
church edifice, and thereby preventing its use by the 
church session and congregation. This case is reported 
in 63 Howard’s Practice Reports, 465. It came before 
DanizLs, J., long-time judge in that department, and 
well and favorably known in this department, and was 
by a minority of the members against the action of the 
board of trustees. The learned judge, in delivering 
his opinion, said, in this case, respecting the purpose 
of the laws of 1875 and 1876: 


“ The plain purpose of these acts was to abrogate 
the rule which had grown out of the preceding con- 
struction given to the act of 1813 and to deprive the 
congregation as well as the trustees of the society of 
the power afterwards to divert the church property 
from the promotion and dissemination of the religious 
views of the persons obtaining and acquiring it to the 
promulgation and maintenance of any different systems 
of religious belief. Instead of holding the property 
subject simply to the disposition of the voting major- 
ity of the congregation, the trustees were henceforward 
required to hold and devote it to the uses and purposes 
of the denomination of Christians in which the society 
should be included that obtained and acquired it. 
Under these acts they became 1n fact as well as in name 
trustees of the religious corporation by whose members 
they should be elected and bound to hold the church 
property according to the discipline, rules, and usages 
of the denomination, including the corporation itself. 
These acts were substantially so construed by Mr. Jus- 
tice BarKER for the purpose of sustaining an injunc- 
tion and preventing the deposed clergyman from occu- 
pying this church edifice and they are acquiesced in 
and adopted as a proper exposition of these enact- 
ments.” 


16 


Then after determining that these statutes are not 
open to the objection of depriving the owners of prop- 
erty withont due process of law, he says further: 


“When the clergyman, officiating as such in this society 
adopted and advocated religious views at variance with 
the presbyterian articles of “be lef, he, by force of these 
provisions of the statute, forfeited his right to use this 
church edifice for their dissemination. The trustees 
by the plain terms of the act, were deprived of the 
authority to allow the church property to be a/fter- 
wards used by him, for it was made their duty to 
hold it subject to the rules and usages of the denomi- 
nation of which this society was a “member and that 
precluded its devction to the inculcation of any system 
of religious belief adverse to what was adopted and 
maintained by the presbyterian denomination. This 
surely was the situation after the clergyman himself 
had been deposed by the action of the presbytery to 
which he himself was amenable, as well for his faith ag 
for his conduct. As long as no good reason appears 
for doubting the substantial regularity of the proceed- 
ings taken by the presbytery for this purpose, after 
he was deposed, he certainly had no right to occupy 
this church property as a clergyman, and he as well as 
those entertaining his views seem to have acquiesced 
in the propriety of that conclusion by holding religious 
services conducted by him at another place ; these acts 
effectually removed him from this society and its mem- 
bers who followed him and adlrered to him in the pro- 
motion of his change of views must for like reason also be 
regarded as having voluntarily relinquished their rights 
as members of this religious incorporation. This re- 
sult is to be deduced from the substance and effect of 
the changes made in the management of corporate re- 
ligions societies by the acts of 1875-6, for they in terms 
secure the appropriation of such property for the de- 
nominational purposes for which it was acquired, and 
they, who, dissenting from that use of the property, vol- 
untarily leave the society and enter into another more 
consonant to their religious views, must, consequently, 
be regarded as abandoning and relinquishing the rights 
and privileges they would be entitled to enjoy if such a 
change had not taken place. 

After that, the persons whom the law will regard or 
recognize as the society and to the inculeation of whose 
views the corporate property is to be devoted, are 
_those who are engaged in maintaining and promoting 

the views of the denomination in whose name the 


17 


church property was acquired. They remain the 
legally organized religious society protected by law 
and entitled to enjoy and occupy the property of the 
corporation. For this purpose, under the rules and 
usages of the denomination, a majority of such persons 
entitled to vote may by petition request the session to 
convene them for the transaction of any chureh or 
secular business at the time requiring their atten- 
Lice ca ahgt. oo 

“ It seems to follow that the trustees must be so far 
enjoined by the order of the court as to prevent them 
from closing the church edifice to meetings proposed 
to be convened by the session upon the petition of a 
majority of the persons now entitled to vote as mem- 
bers of this society and still adhering to the articles of 
faith of the Presbyterian Church and from closing the 
church edifice against the same persons desirous of 
gathering there on the sabbath day, in comphance with 
and under the authority of Chapter 21 of the Form of 
Government of the church. So far as persons still 
adhering to the religious faith and articles of belief of 
their denomination, and who have heretofore been 
“members of this congregation, are entitled to be con- 
tinued in the use and enjoyment of this church prop- 
erty (Watson v. Jones, 13 Wall, 680).” 

Which of the views involved in this controversy may 
abstractly appear to be the most entitled to support, 
is not a question with which a Court of Justice has 
anything to do in an application of this nature. Its 
power and authority are proprietary in their nature. 
It is simply required to ascertain what may be the 
law of the case, and when that is ascertained to en- 
force it, irrespective of the religious views of either of 
the contestants. Upon this subject there appears to 
be no serious ground for doubt, and to the extent 
already indicated, an injunction will be allowed re- 
straining and controlling the conduct of these trustees 
in the use of this church property.” 


The case cited with approval by Judge Danizts 
(Watson vs. Jones, 13 Wall., 679) is a leading case in 
the United States upon the question of the complete 
recognition by the civil courts of the full authority of 
the ecclesiastical courts to pass upon all ecclesiastical 
questions, and particularly of their right to decide 
finally the ecclesiastical status of all the members of 
such bodies, without revision or review by the civil 


18 


courts, and the opinion contains a full reference and 
review of the American cases upon that subject. The 
case is very instructive and points out clearly the dif- 
ference between the American rule in which the civil 
courts, accept the conclusions of the ecclesiastical 
tribunals, as final upon ecclesiastical questions, and the 
English rule, where the civil courts review the action 
of the ecclesiastical tribunals. The opinion by Mr. 
Justice MILLER discusses the whole question and the 
following paragraphs summarize the decision. He 


Says: 


“In this country the full and free right to en- 
tertain any religious belief, to practice any  re- 
ligious principle, and to teach any religious 
doctrine which does not violate the laws of 
morality and property, and which does not in- 
fringe personal rights, is conceded to all. The law 
knows no heresy, is committed to the support of no 
dogma, the establishment of no sect. The right to or- 
ganize voluntary religious associations to assist in the 
expression and dissemination of any religious doctrine, 
and to create tribunals for the decision of controverted 
questions of faith within the association, and for the 
ecclesiastical government of all the individual mem- 
bers, congregations and ofticers within the general as- 
sociation is unquestioned. All who unite themselves 
to such a body do so with an implied consent to this 
government and are bound to submit to it. Butit would 
be a vain consent, and lead to the total suppression of 
such religious bodies, if any one aggrieved by one of 
their decisions could appeal to the secular courts and 
have tem reversed. It is of the essence of these re- 
ligious unions, and of their right to establish tribunals 
for the decision of questions arising among themselves, 
that those decisions should be binding in all cases of 
ecclesiastical cognizance, subject only to such appeals 
as the organism itself provides for. 

“Nor do we see that justice would be likely to be 
promoted by submitting those decisions to review in 
the ordinary judicial tribunals. Hach of these large 
aud influential bodies (to mention no others, let refer- 
ence be had to the Protestant Episcopal, the Methodist 
Episcopal, and the Presbyterian Churches), has a body 
of coustitutional and ecclesiastical law of its own, to be 
found in their written organic laws, their books of dis- 
cipline, in their collections of precedents, in their 


1 


usage and customs, which, as to each, constitute a 
system of ecclesiastical law and religious faith, that 
tasks the ablest minds to become familiar with. It is 
not to be supposed that the judges of the civil courts 
can be as competent in the ecclesiastical law and relig- 
ious faith of all these bodies as the ablest men in each 
are in reference to their own. It would therefore be 
an appeal from the more learned tribunal in the law 
which should decide the case, to one which is less so. 
“ We have said that these views are supported by 
the preponderant weight of authority in this country, 
and for the reasons which we have given, we do not 
think that the doctrines of the English Chancery Court 
on this subject should have with us the influence which 
we would cheerfully accord to it on others”. (pp. 728, 


129). 


Then, after reviewing a number of American author- 
ities, he says further : 


“ We cannot better close this review of the authori- 
ties than in the language of the Supreme Court of 
Pennsylvania, in the case of German Reformed Church 
vs. Seibert (3 Barr, 291): “ The decisions of ecclesias- 
tical courts, like every other judicial tribunal, are final, 
as they are the best judges of what constitutes an 
offense against the word of God and the discipline of 
the church. Any other than those courts must be in- 
competent judges of matters of faith, discipline, and 
doctrine ; and civil courts, if they should be so unwise 
as to attempt to supervise their judgment on matters 
which come within their jurisdiction, would only in- 
‘volve themselves ina sea of uncertainty and doubt 
which would do anything but improve either religion 
or good morals”. 

In the subsequent case of McGinnis v. Watson (41 
Penna. State 21) this principle is again applied and 
supported by a more elaborate argument” (p. 732). 

* * * * * * 

“ But we need to pursue this subject no further, 
Whatever may have been the case before the Kentucky 
court, the appellants in the case presented to us have 
separated themselves wholly from the church organiza- 
tion to which they belonged when this controversy 
commenced. They now deny its authority, denounce 
its action and refuse to abide by its judgments. They 
have, first, erected themselves into a new organization 
and have since joined themselves to a totally different, 
if not hostile, to the one to which they belonged when 


20 


the difficulty first began. Under any of the decisions 
which we have examined, the appellants in their pres- 
ent position, have no right to the property, or to the 
use of it, which is the subject of this suit” (p. 734). 


Mr. Justice Miter, in the course of his opinion, 
cites and considers the cases of 

Smith v. Nelson, 18 Vermont, 511. 

Shannon v. Frost, 3 Ben Monroe, 253. 

Gibson vy. Armstrong, 7 Ben Monroe, 481. 

Den y. Bolton, 7 Halstead (N. J.), 206. 

German Reformed Church v. Seibert, 3 Barr, 282. 

McGinnis e¢ al. v. Watson, e¢ a/s., 42 Penn. St., 1. 

Ferraria v. Vasconcelles, 23 Illinois, 456. 

Watson v. Farris, 45 Missouri, 183, 
all sustaining the same doctrine as announced by him 
in the paragraphs quoted ante, and as announced by 
DanteELs, J. It is not deemed necessary to quote from 
them, in the absence of any respectable authority to 
the contrary. 

Two recent decisions very clearly indicate the 
opinions of the American Courts upon this subject. 
The case of Dayton v. Carter, 206 Penn. 491, decided 
in 1903, holds that where an attempt was made in a 
civil court to test the validity of the election of a 
session, it was a question for the ecclesiastical courts, 
and not for the civil courts, and also that where a 
presbytery regularly convened at a stated meeting 
exercised its right to direct elders to cease acting 
without citing them to appear, or to be heard in their 
own behalf, and such action was held constitutional 
by the General Assembly of the Presbyterian Church, 
that the civil courts will follow that ruling without 
question, 

In the Appellate Court of the District of Columbia, 
20 Appeals, 393, in the case of Satterlee v. United 
States ex rel. Williams, the question arose under the 
constitution and form of goverment of the Protestant 
Episcopal Church and was very thoroughly argued by 
leading lawyers. Chief-Justice ALvry delivered the 
opinion of the Court after a very careful consideration 


21 


of the whole subject. The syllabus presents the con- 
elusions very clearly in the following points: 


“There is no power or jurisdiction in the civil 
courts of the common law jurisdiction to review and 
correct by certiorari supposed errors in the proceed- 
ings and judgment of a diocesan court organized under 
canons of the general and diocesan conventions of the 
Protestant Episcopal Church, in matters of ecclesias- 
tical cognizance, such as charges of crime or immoral- 
ity against a clergyman of the church, bat the judg- 
ment of such court is conclusive. 

Because by deposition from his office, a clergyman 
of the Protestant Episcopal Church as a result of a 
sentence of the diocesan court, is-deprived of the right 
or power to exercise the functions of a minister of the 
church, and of the right to earn a salary as such 
minister, a property right is not thereby involved 
which will give the civil courts jurisdiction to review 
by certiorari the action of such diocesan court, there 
being no vested property right in a clergman to exer- 
cise the functions of his office to the end that he may 
earn and have a salary. | 

Irregularity under the canons of the church in the 
organization of the diocesan court of the Protestant 
Episcopal Church ; refusal of such a court to enter- 
tain a challenge taken by a clergyman on trial before 
it to one of the members of the court; supposed 
insufficiency of the evidence upon which the accused 
could be convicted, under the provisions of a certain 
canon, are questions of procedure, where they involve 
construction of the canons of the church, and depend 
upon the judgment of the ecclesiastical court, over 
which the civil courts can exercise no power of revision 
or control.” 


While the English courts, as stated above, exercise a 
revisory power over the ecclesiastical courts in mat- 
ters ecclesiastical, yet the same courts do not differ 
from the American courts in the principles which they 
apply respecting property rights. Those courts 
recognize the rights of the denomination to the prop- 
erty which has been given to the denomination, and 
where there has been, as in the case at bar, a seces- 
sion of a majority of the members of the particular 
church, or of the whole body, leaving only a small 
minority adhering to the original denomination, yet 


22 


the English courts recognize the rights of the minority 
to the control of the property. This is strikingly illus- 
trated in the notable cases of the General Assembly 
of the Free Church of Scotland and others, appellants, 
against Lord Overtoun and others, respondents, 
McAllister and others, appellants, against Young and 
others, respondents, decided in the House of Lards in 
the year 1904 and reported in Law Reports, Appeal 
Cases (H. L.) 1904, 515-764. In this case the Syl- 
labus states the essentials of the decision as appled 
to the question we are considering : 


“ The denomination of Christians which called itself 
the Free Church of Scotland was founded in 1843. It 
consisted of ministers and laity who seceded from the 
established church of Scotland, but who professed to 
carry with them the doctrines and system of the estab- 
jished church, only freeing themselves by secession 
from what they regarded as interference of the state 
in matters spiritual. ‘Two main fundamental doctrines 
which the appellants, the minority of the Free Church, 
asserted that the seceders in 1843 carried with them 
and issued in their Claim, Declaration, and Protest to 
their supporters and benefactors in that year to stand 
for all time, were the establishment principle and the 
unqualified acceptance of the Westminster Confession 
of Faith, and they further asserted that these doc- 
trines were part of the constitution of the Church and 
could not be altered. In 1843 and subsequent years 
the response to the appeal for funds was most bounti- 
ful. and the Free Church was endowed by the liberality 
of its members, the property being secured under 
what was called a ‘* Model Trust Deed.” For many 
years efforts had been made to bring about a union be- 
tween the Free Church and the United Presbyterian 
Church, also seceders from the Established Church, 
but a church pledged to disestablishment. In 1900 
Acts of Assembly were passed by the majority of the 
Free Church and unanimously by the United Presby- 
terian Church for union, under the name of the United 
Free Church, and the Free Church property was con- 
veyed to the new trustees for behoof of the new 
church. The United Presbyterian Church was op- 
posed to the Establishment principle, and did 
not maintain the Westminster Confession of Faith 
in its entirety. The act of union left ministers 
and laymen free to hold opinions as regards the Estab- 


23 


lishment principle and the predestination doctrine (in 
the Westminster Confession) as they pleased. The 
respondents contended that the Free Church had full 
power to change its doctrines so long as its identity 
was preserved. The appellants, a very small minority 
of the Free Church, objected to the union, inaintaining 
that the Free Church had no power to change its orig- 
inal doctrines or to unite with a body which did not 
confess those doctrines, and they complained of a 
breach of trust inasmuch as the property of the Free 
Church was no longer being used for behoof of that 
church. And they brought this action in the name of 
the General Assembly of the Free Church, asking sub- 
stantially for a declarator that they, as representing 
the Free Church, were entitled to the property. 

Held, reversing the decision of the Second Division 
of the Court of Sessions (Lords MAcNAUGHTEN and 
LInviey dissenting), that the Establishment principle 
and the Westminster Confession were distinctly tenets 
of the Free Church; that the Free Church had no 
power, where property was concerned, to alter or vary 
the doctrine of the church; that there was no true 
union, as the United Free Church had not preserved 
its identity with the Free Church, not having the same 
distinctive tenets ; and that the appellants were en- 
titled to hold for behoof of the Free Church the prop- 
erty held by the Free Church before the union in 
19002 


It may be claimed that the two constituent religious 
corporations which formed the Westminster Presby- 
terian Church of West Twenty-third Street, were 
formed under the old Act of 1813, and, therefore, are 
subject to a different rule, and the earlier decisions in 
New York have application, either because of the 
difference in the original act, or by reason of some 
clause in their original acts of incorporation. This 
cannot be so because this consolidation was the 
formation of a new corporation in 1889 under the act 
then in force. (Complaint, folio 125.) 

No provisions in the charters in the old churches 
could have any material bearing because the con- 
solidation of 1889 was subject to the provisions of the 
Acts of 1875 and 1876. The effect of consolidation 
of corporations under statutes has been frequently 


24 

considered and it is quite well-settled law that such 
consolidation is a surrender of the charters of the old 
corporations and the taking out of a new charter. 
Any special exemptions or provisions existing in the 
original charters are, therefore, lost unless the statute 
under which the consolidation takes place expressly 
preserves them. This is clearly held in the leading 
eases of Shields v. Ohio, 95 U. S., 319; Railway 
Company v. Georgia, 98 U. S., 359. 

In the first case above cited one of the constituents. 
of a consolidated railroad company had an unlimited 
right to fix rates. This was claimed by the con- 
solidated company to belong to it as against a 
limitation created by later statutes. This right was 
denied by the Court. In the second case the right of 
exemption from taxation on the same ground was 
denied. 


Re-Capitulation. 


(1) The defendant John Lloyd Lee’s position has 
been defined by the Presbytery of New York, in 
answer to his letter to the Stated Clerk of that body. 

That decision defined his ecclesiastical status, and 
such decision will not be reviewed by the Civil Courts. 


(2) That decision is that he is no longer pastor of 
the Westminster Presbyterian Church of West Twenty- 
third Street. 

The position of the other \lefendants has likewise 
been definitely settled by the Presbytery. That 
decision is that they are no longer members of the 
Session of Westminister Presbyterian Church of West 
Twenty-third Street, or members of the Presbyterian 
Church in the United States of America. That is a 
decision as to their Ecclesiastical Status, which the 
Civil Court will accept as a fact, and not attempt to 
review. 


(3) The defendants position as Trustees of the Civil 
Corporation is however wholly dependent upon or 


25 


determined by their ecclesiastical position, for the 
state law makes it thus dependent. 


(4) If the defendant Lee has ceased to be pastor 
the other defendants have no right under the limita- 
tions of the Religious Corporations Act of New York 
to allow him to occupy the property of Westminister 
Presbyterian Church of West Twenty-third Street or 
use it for preaching purposes. 


(5) If they have ceased to be members of the Pres- 
byterian Church and members of the Session then they 
are no longer Trustees and have no right or power to 
control or use this property for any purpose whatever. 


(6) The statutes of New York and the authorities 
cited in the brief, from New York and elsewhere, define 
the use of the Church property by the defendants 
under the foregoing facts as a breach of a solemn trust 
and diversion of funds to improper uses. 


(7) For the foregoing reasons the injunction asked 
for should be granted pending the trial of this action, 
Respectfully, 

RusH TaGGcart, 
Attorney for Plaintiffs. 


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